| Matter of Dickerson v Robenstein |
| 2009 NY Slip Op 08904 [68 AD3d 1179] |
| December 3, 2009 |
| Appellate Division, Third Department |
| In the Matter of Melissa Dickerson, Appellant, v Richard E.Robenstein, Respondent. |
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Malone Jr., J. Appeal from an order of the Family Court of Saratoga County (Hall, J.),entered October 23, 2008, which, among other things, dismissed petitioner's application, in aproceeding 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 divorcedparents of one child (born in 2003). After the parties' separation, they stipulated to an award ofjoint legal custody and equally shared physical custody of their son. Thereafter, pursuant to aprior modification order, the mother relocated to western Massachusetts while the fatherremained in Saratoga County.
In March 2008, the mother commenced this proceeding, seeking primary physical custody ofthe child and permission to relocate with the child to Connecticut to reside with her husband andtheir child.[FN1] Following a bench trial, Family Court denied the mother permission to [*2]relocate with the child and awarded primary physical custody to thefather. The mother appeals.
An existing custody order will be modified only when there is a showing that there has beena change in circumstances that will ensure the continued best interests of the child (seeMatter of Grathwol v Grathwol, 285 AD2d 957, 958 [2001]; Matter of Hrusovsky vBenjamin, 274 AD2d 674, 675 [2000]). The parties do not challenge Family Court's findingthat the child's attainment of school age constitutes a change in circumstances necessitating amodification of the shared physical custody arrangement. Thus, the issue here is whether thechild's best interests are served by Family Court's award of primary physical custody to thefather. Factors to be considered in making such a determination include the quality of eachparent's home environment and their relative fitness to guide the child's intellectual andemotional development and provide for the child's physical needs (see Eschbach vEschbach, 56 NY2d 167, 172-173 [1982]; Matter of Zwack v Kosier, 61 AD3d 1020, 1022 [2009], lvdenied 13 NY3d 702 [2009]).
Here, Family Court found that, although both were loving and committed parents, the fatherafforded the child more stability and familial support. Family Court noted specifically that themother's husband was in the military and was only temporarily stationed in Connecticut, whichcreated the possibility of another relocation in the future.[FN2]Additionally, the mother, who resided in Massachusetts at the time of the trial, offered littletestimony regarding her proposed living arrangements in Connecticut, other than indicating thather husband shared an apartment with other military personnel. The father, however, hasmaintained his residence in the Capital District his entire life. His proximity to the child'sextended families also weighed in his favor, especially considering his demonstrated willingnessto support and encourage the child's relationship with the mother's relatives. Finally, FamilyCourt noted that the mother withheld certain information regarding the child's medical healthfrom the father, which indicated that the mother was less likely than the father to foster thechild's relationship with the other parent. Based on the foregoing, and according deference toFamily Court's credibility determinations, the court's determination to award primary physicalcustody to the father is supported by a sound and substantial basis in the record (see Matterof Grathwol v Grathwol, 285 AD2d at 958).
The foregoing also establishes that permitting relocation of the child with the mother toConnecticut would not be in the child's best interest (see Matter of Tropea v Tropea, 87NY2d 727, 740-741 [1996]; Matter of Hrusovsky v Benjamin, 274 AD2d at 676).Although the mother cited her desire to promote a relationship between the child and his halfsibling as one reason for seeking the relocation, she offered no evidence that such relocation wasnecessary to accomplish this goal, or that the relocation was otherwise necessary to enhance thechild's economic, emotional or educational welfare (see Matter of Tropea v Tropea, 87NY2d at 740-741). Additionally, the father was able to provide more overall stability to the childand there was no evidence that the child's relationship with his half sibling could not beadequately fostered through visitation arrangements (see id.; Matter of Winston v Gates, 64 AD3d815, 816-818 [2009]). Finally, while not binding on this Court, we note that the LawGuardian fully supports Family Court's determination to award primary physical custody to thefather and to deny the [*3]mother's request for permission torelocate the child to Connecticut.
Mercure, J.P., Rose, Lahtinen and Garry, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: The father apparentlycross-petitioned for primary physical custody of the child, but that petition was not included inthe record on appeal.
Footnote 2: Due to his deployment, themother's husband did not appear at the trial. However, the mother testified that her husband wascommitted to the Navy for another two years and that he had not yet decided whether to reenlistat the end of that commitment.