| Matter of Winston v Gates |
| 2009 NY Slip Op 05655 [64 AD3d 815] |
| July 2, 2009 |
| Appellate Division, Third Department |
| In the Matter of Tami R. Winston, Respondent, v Dennis L. Gates,Appellant. (And Another Related Proceeding.) |
—[*1] Brian J. Mohin, Hartwick, for respondent. Christopher A. Pogson, Law Guardian, Binghamton.
Stein, J. Appeal from an order of the Family Court of Broome County (Charnetsky, J.),entered January 14, 2008, which, among other things, granted petitioner's application, in twoproceedings pursuant to Family Ct Act article 6, to modify a prior order of custody.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the parents of adaughter (born in 1996). The parties separated when the child was approximately two years oldand the child has primarily resided with the mother since that time. In 2002, the partiesconsented to a modified order[FN1]awarding them joint legal custody of the child, with the child's primary residence to remain withthe mother and an extensive visitation schedule with the father. In 2007, the mother commencedthe first of these proceedings, seeking modification of the 2002 order to allow her to move toFlorida with the child. The father then commenced a proceeding, [*2]requesting that the prior order be modified to place the child'sprimary residence with him. After a bench trial and a Lincoln hearing (at which theparties' counsel were present during the child's testimony), Family Court rendered an oraldecision on the record, which was followed by a written order, continuing the child's primaryresidence with the mother, granting the mother's request for permission to relocate to Floridawith the child and awarding the father extensive parenting time. The father now appeals and weaffirm.
The relevant factors to be considered by a court in reviewing an application by a parent forpermission to relocate a child's primary residence include, but are not limited to, "each parent'sreasons for seeking or opposing the move, the quality of the relationships between the child andthe custodial and noncustodial parents, the impact of the move on the quantity and quality of thechild's future contact with the noncustodial parent, the degree to which the custodial parent's andchild's life may be enhanced economically, emotionally and educationally by the move, and thefeasibility of preserving the relationship between the noncustodial parent and child throughsuitable visitation arrangements" (Matter of Tropea v Tropea, 87 NY2d 727, 740-741[1996]). The court is free to consider and give appropriate weight to all relevant factors and,"[i]n the end, it is for the court to determine, based on all of the proof, whether it has beenestablished by a preponderance of the evidence that a proposed relocation would serve the child'sbest interests" (id. at 741).
Here, the basis of the mother's application was that she had been diagnosed with adegenerative disc disease and was unable to continue to work. As a result, she had been forced toreside with relatives and with a former boyfriend, none of whom were able to accommodate herand the child on a long-term basis, necessitating that they move frequently. The mother's parentshad offered to allow her and the child to reside with them indefinitely at their home in Floridaand to provide for their basic living expenses, including room and board. The father alleged, insupport of his application, that the mother's inability to provide for the child and his own abilityto provide a stable and secure environment for the child warranted a change in the child'sprimary residential custody to him. While Family Court did not set forth a detailed analysis of itsreasoning, our review of the record enables us to make the necessary findings which support adetermination that the mother's relocation with the child—and, accordingly, the denial ofthe father's petition for modification of primary residential custody—was in the child'sbest interests (see id. at 741; Matter of Bobroff v Farwell, 57 AD3d 1284, 1285 [2008]; Matter of Bessette v Pelton, 29 AD3d1085, 1087 [2006]; Matter ofAnson v Anson, 20 AD3d 603, 604 [2005], lv denied 5 NY3d 711 [2005]).
The witnesses at trial included the mother, the mother's father (hereinafter the grandfather),the father and the father's current wife. The evidence established that both parents were activeparticipants in raising the child and had a strong relationship with the child. However, the motherhad been the child's primary caregiver for most of the child's life and the child had a strongerbond with her. For example, the record reflected that the child generally turned to the mother foradvice and when she wanted someone in whom to confide. As Family Court observed, themother, unlike the father, was knowledgeable with regard to the child's medical diagnosis ofattention deficit disorder and special educational needs and addressed concerns relating to thoseneeds. The mother also arranged for the child's involvement in various extracurricular activities(although the father's participation in those activities was also substantial). Significantly, themother testified that she was unable to financially support herself or the child due to her medicalcondition and that she and the child had exhausted all available [*3]local resources.
The grandfather testified that the mother and child would be able to reside with him and hiswife at no cost as long as necessary. The evidence established that the mother and the childwould each have their own bedrooms at the grandparents' residence—in contrast to thefather's home, where the child was required to share a room with a stepsibling—and thatthe school the child would attend was located near their home. There was no evidence of anymotive on the part of the mother, other than economic security and stability—let alone anyimproper motive—for her desire to relocate with the child. Both the mother and thegrandfather indicated their willingness to provide the father with as much visitation with thechild as practicable and to facilitate as much communication between the father and the child asthe child desired.[FN2]
On the other hand, Family Court clearly considered the unquestionable fitness of the father,his close relationship with the child, the presence of members of the child's extended family inthe area of the father's residence, and the child's positive adjustment to her school andestablished social relationships. However, there was also evidence that the father's householdconsisted of his wife and, at times, as many as four other children, leaving limited time for himto spend alone with the subject child. In addition, while the father testified that he would bewilling to pay any tuition necessary to maintain the child in her current school,[FN3]he had not inquired as to the amount of such tuition and his modest income raises questionsregarding the feasibility of his doing so, thus increasing the likelihood that the child would berequired to change schools even if he were awarded primary residential custody. Finally, wediscern no abuse of discretion in Family Court's determination to place substantial weight on thechild's expressed desire to relocate to Florida with the mother, particularly in view of the LawGuardian's recommendation that the child's wishes be given such weight and the opportunityafforded to Family Court to observe the child and ascertain her level of maturity and ability toarticulate her preferences (see Matter ofBurch v Willard, 57 AD3d 1272, 1273 [2008]).
Notwithstanding the existence of evidence demonstrating that the father is a good parent, weconclude that a preponderance of the evidence exists to support Family Court's determinationthat relocation of the child with the mother was in the child's best interest. As such, and givenFamily Court's unique ability to make credibility determinations, we decline to disturb the court'sdetermination (see Matter of Tropea v Tropea, 87 NY2d at 741; Matter of Winn v Cutting, 39 AD3d1000, 1001 [2007]).
Mercure, J.P., Rose, Malone Jr. and Garry, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: It is unclear when the originalorder of custody was entered or what provisions it included, as such order is not contained in therecord before us.
Footnote 2: Notably, to that end, FamilyCourt's order provided for extensive visitation—six weeks during the summer, one weekat Christmas, and one week during spring break—and required the mother to providetransportation for two of those visits, a cellular telephone that would allow the child and thefather to make regular and frequent local telephone calls to one another, and e-mailcommunication.
Footnote 3: His residence was in a differentschool district.