| Matter of Linn v Wilson |
| 2009 NY Slip Op 09875 [68 AD3d 1767] |
| December 30, 2009 |
| Appellate Division, Fourth Department |
| In the Matter of Tamera Linn, Respondent, v Clifton Wilson,Appellant. |
—[*1] D.J. & J.A. Cirando, Esqs., Syracuse (Elizabeth DeV. Moeller of counsel), forpetitioner-respondent. Gerald M. Driscoll, Law Guardian, Olean, for Marcus W.
Appeal from an order of the Family Court, Cattaraugus County (Lynn L. Hartley, J.H.O.),entered August 29, 2008 in a proceeding pursuant to Family Court Act article 6. The order,among other things, granted petitioner permission for the parties' child to relocate with her toanother state.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Respondent father appeals from an order that, inter alia, granted the petitionto modify a prior order of custody and visitation by granting petitioner mother permission for theparties' child to relocate with her to Alabama. We reject the father's contention that Family Courtabused its discretion in failing to direct that the mother be examined by a psychiatrist orpsychologist (see Family Ct Act § 251 [a]). " '[T]he decision whether to direct[such an] evaluation in a child custody dispute is within the sound discretion of the court' " (Matter of Kubista v Kubista, 11 AD3d743, 745 [2004]). The father failed to meet his burden of squarely placing the need for suchan evaluation before the court, and the record does not otherwise provide a basis for theconclusion that such an evaluation is necessary (see Matter of Heintz v Heintz, 275AD2d 971 [2000]; Matter of Peters v Peters, 260 AD2d 952 [1999]). Although themother admitted that she had been diagnosed with bipolar disorder, the record establishes thatshe consistently maintained a drug treatment regimen for nearly 20 years and was under the careof a family physician. The father, on the other hand, did not submit any evidence that themother's mental health condition was poorly maintained or unregulated.
We further conclude that the court properly granted the mother's petition based upon thefactors set forth in Matter of Tropea v Tropea (87 NY2d 727, 740-741 [1996]). Themother met her burden of establishing by a preponderance of the evidence that the proposedrelocation would be in the best interests of the child (see Matter of Scialdo v Cook, 53 AD3d 1090, 1092 [2008]). Themother has been the primary caretaker of the child since his birth (see id.), and the fatherhas not consistently exercised the visitation to which he was entitled under the prior order.Indeed, [*2]the court found the testimony of the fatherconcerning his actual time spent with the child to be "vague and evasive."Present—Hurlbutt, J.P., Smith, Fahey and Carni, JJ.