| Matter of Solomon v Long |
| 2009 NY Slip Op 09565 [68 AD3d 1467] |
| December 24, 2009 |
| Appellate Division, Third Department |
| In the Matter of Selena R. Solomon, Appellant, v JosephLong Jr., Respondent. |
—[*1] O'Connor & Kruman, P.C., Cortland (Randolph V. Kruman of counsel), for respondent. Norbert A. Higgins, Law Guardian, Binghamton.
McCarthy, J. Appeal from an order of the Family Court of Chemung County (Brockway, J.).entered August 28, 2008, which dismissed petitioner's application, in a proceeding pursuant toFamily Ct Act article 6, to modify a prior order of custody.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) never married andare the parents of a son (born in 1996). The mother has sole legal and physical custody and thefather is authorized to have unsupervised visitation every other weekend and a minimum oftwice-weekly telephone contact. Moreover, the most recent custody order expressly prohibits themother from moving the child's residence from Chemung County without written approval of thecourt. In 2008, the mother petitioned Family Court for permission to relocate the child from theCity of Elmira, Chemung County to the Village of Fairport, Monroe County, approximately twohours away. The impetus for the relocation was the mother's pending marriage to herthen-fiancÉ. In a well-reasoned decision, Family Court dismissed the petition, finding,after thoughtful consideration of all the relevant factors, that relocation would not serve thechild's best interests. We affirm.
The mother has been the child's primary caregiver since his birth, when she was only 18years old. Relying on the child's maternal grandmother for day care, the mother has maintained[*2]steady employment, put herself through nursing school and,at the time of the petition, worked as a registered nurse at a hospital in Sayre, Pennsylvania. Shemet her future fiancÉ in January 2007, and they were engaged a year later. HerfiancÉ runs a family-owned, Internet-based business. He was previously married, has nochildren, owns his own home and enjoys a good relationship with the parties' son. By the time oftrial, the mother had accepted a nursing position with a hospital in the City of Rochester, MonroeCounty—near Fairport—which provided a modest increase in pay and free tuitionbenefits that would allow her to further develop her professional nursing education at theUniversity of Rochester. After five years at that hospital, she would also receive a 50% tuitionreduction at the university for the parties' son. The mother also testified that the new positionwould require only three 12-hour shifts per week, in contrast to the 40 to 50 hours per week sheworks in Pennsylvania, allowing her to spend more time with the child. The mother valued thechild's relationship with his father and was willing to continue to be flexible and generous withvisitation. She also offered to forgo child support and help defray the increased transportationcosts associated with visitation if the petition were granted.
Early in the child's life, the father had several alcohol-related charges, and served a prisonterm for leaving the scene of an accident. A prior custody order required supervised visitation.The father underwent treatment and has maintained an unrestricted driver's license for more than10 years. In recent years, the father and son have developed a very strong bond, principallythrough the father's participation in the son's sporting activities. The son is a gifted athlete, andthe father has coached the son's baseball, basketball and football teams for the past several years.They also enjoy fishing and camping together. Although the father has not participated asextensively in their son's school activities as the mother has, the son is nevertheless an honorstudent. Since 2002, the father has been unemployed, receiving $213 biweekly in workers'compensation payments due to a back injury, and is current on his $75 per month child supportobligation. He is currently living with his parents in Elmira, pending settlement of his workers'compensation claim. The child has a very strong bond with his maternal grandmother, as well ashis paternal grandparents and his extended family in the Elmira area. Although the current orderonly provides for visitation every other weekend, the father also takes the son as often as threetimes a week for practices as well as any games that occur on non-visitation weekends. Themother has shown great flexibility and cooperation in fostering the child's relationship with hisfather and his father's extended family, all of which, to date, appear to have greatly benefitted thechild. The Law Guardian stated that the child expressed a strong desire to remain neutral on thepetition.
A party seeking relocation of his or her child must establish, by a preponderance of theevidence, that the relocation would be in the child's best interests (see Matter of Bobroff vFarwell, 57 AD3d 1284, 1285 [2008]; Matter of Hills v Madrid, 57 AD3d 1175,1176 [2008]; Matter of Winn v Cutting, 39 AD3d 1000, 1001 [2007]). Among the factorsa court considers in determining the child's best interests are "each parent's reasons for seekingor opposing the move, the quality of the relationships between the child and the custodial andnoncustodial parents, the impact of the move on the quantity and quality of the child's futurecontact with the noncustodial parent, the degree to which the custodial parent's and the child'slife may be enhanced economically, emotionally and educationally by the move, and thefeasibility of preserving the relationship between the noncustodial parent and the child throughsuitable visitation arrangements" (Matter of Tropea v Tropea, 87 NY2d 727, 740-741[1996]). Where, as here, Family Court's determination is supported by a sound and substantialbasis in the record, it will not be disturbed (see Malcolm v Jurow-Malcolm, 63 AD3d1254, 1256 [2009]; Matter of Wentland v Rousseau, 59 AD3d 821, 822 [2009]).Although the proposed relocation may be [*3]beneficial to themother and her motivation for the move is certainly understandable, we find no reason to disturbFamily Court's determination that she has not shown how the move could avoid disrupting thefamilial engagement under which the child has clearly thrived (see Matter of Yelverton vStokes, 247 AD2d 719, 721 [1998], lv denied 92 NY2d 802 [1998]; Matter ofBurnham v Basta, 241 AD2d 628, 629-630 [1997], lv denied 90 NY2d 812 [1997]).
Mercure, J.P., Kavanagh, Stein and Garry, JJ., concur. Ordered that the order is affirmed,without costs.