| Rubio v Rubio |
| 2010 NY Slip Op 02121 [71 AD3d 862] |
| March 16, 2010 |
| Appellate Division, Second Department |
| Henry Rubio, Appellant, v Rosemary Rubio,Respondent. |
—[*1] Annette Rodriguez-Soriano, P.C., Bronx, N.Y., for respondent. Cheryl L. Kreger-Grella, Jericho, N.Y., attorney for the child.
In a matrimonial action in which the parties were divorced by judgment dated February 13,2003, the father appeals, as limited by his brief, from so much of an order of the Supreme Court,Queens County (Flaherty, J.), dated August 28, 2009, as, after a hearing, granted the mother'smotion for permission to relocate to North Carolina with the parties' child.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, themother's motion for permission to relocate to North Carolina with the parties' child is denied, andthe matter is remitted to the Supreme Court, Queens County, to direct the mother to produce thechild in the State of New York and to determine the date upon which the child must be produced.
The parties separated shortly after their daughter was born in 2000. They divorced in 2003,after a 2½-year marriage. While the mother had custody of the child pursuant to astipulation of settlement in the divorce proceeding, the child spent the first three weekends ofeach month with the father and his family, in addition to holidays and summer vacation.
The mother moved in the Supreme Court for permission to relocate to North Carolina withthe child. At an expedited hearing, the mother asserted that she desired a new beginning forherself and the child and that they would enjoy a higher standard of living and an improvedquality of life. While the mother initially proposed continuing the father's existing visitation andbearing the expense of flying the child to New York three times per month, she subsequentlysuggested reducing the father's visitation to one visit per month, with extended summer vacation.
The Supreme Court's primary focus must be on the best interests of the child when reviewinga custodial parent's request to relocate (see Matter of Tropea v Tropea, 87 NY2d 727,739 [1996]; Matter of Martino vRamos, 64 AD3d 657 [2009]; Noble v Noble, 52 AD3d 490 [2008]). The custodial parent mustdemonstrate by a preponderance of the evidence that the proposed move is in the child's bestinterests (see Martino v Ramos, 64 AD3d at 658; Noble v Noble, 52 AD3d at491; Matter of Schreurs v Johnson,27 AD3d 654, 655 [2006]).[*2]
The factors to be considered "include, but are certainlynot limited to, each parent's reasons for seeking or opposing the move, the quality of therelationships between the child and the custodial and noncustodial parents, the impact of themove on the quantity and quality of the child's future contact with the noncustodial parent, thedegree to which the custodial parent's and child's life may be enhanced economically,emotionally, and educationally by the move, and the feasibility of preserving the relationshipbetween the noncustodial parent and child through suitable visitation arrangements" (Matterof Tropea v Tropea, 87 NY2d at 740-741). "Indeed, even where the move would leave thenoncustodial parent with what may be considered 'meaningful access,' there is still a need toweigh the effect of the quantitative and qualitative losses that naturally will result against suchother relevant factors as the custodial parent's reasons for wanting to relocate and the benefitsthat the child may enjoy or the harm that may ensue if the move is or is not permitted"(id. at 739).
Here, the record lacked a sound and substantial basis for the Supreme Court's determinationthat the proposed relocation was in the child's best interests (cf. Matter of Martino v Ramos, 64 AD3d 657 [2009]; Scannevin v Scannevin, 51 AD3d901, 902 [2008]; Matter ofFegadel-Anderson v Anderson, 9 AD3d 409 [2004]; Matter of Rotering v Rotering, 6 AD3d 718 [2004]). The mother'sproposed employment situation in North Carolina was tenuous at best, the father's visitation withthe child would be dramatically reduced by the relocation, and the mother failed to demonstrateby a preponderance of the evidence that the proposed move would enhance the child's lifeeconomically, emotionally, and educationally (compare Bruno v Bruno, 47 AD3d 606[2008]). Accordingly, we remit the matter to the Supreme Court, Queens County, to direct themother to produce the child in the State of New York and to determine the date upon which thechild must be produced. Dillon, J.P., Santucci, Balkin and Sgroi, JJ., concur.