| Matter of Hissam v Mancini |
| 2011 NY Slip Op 00052 [80 AD3d 802] |
| January 6, 2011 |
| Appellate Division, Third Department |
| In the Matter of Michelle C. Hissam, Appellant, v Matthew P.Mancini, Respondent. (And Another Related Proceeding.) |
—[*1] Robert H. Ballan, Norwood, for respondent. Diane J. Exoo, Canton, attorney for the child.
Lahtinen, J. Appeal from an order of the Family Court of St. Lawrence County (Potter, J.),entered July 2, 2009, which, among other things, granted respondent's cross 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) have a son (born in1998). We previously affirmed a November 2005 order of Family Court which granted the father,who resided in Pennsylvania, primary physical custody with liberal parenting time to the mother,who resided in St. Lawrence County (Matter of Hissam v Mackin, 41 AD3d 955 [2007], lvdenied 9 NY3d 809 [2007]). In January 2009, the mother commenced, without counsel, thecurrent proceeding seeking modification to grant her primary physical custody and an orderfinding the father in contempt for allegedly failing to deliver the son for visitation atcourt-ordered times. The father, among other things, cross-petitioned for modification permittinghim to move with the child to Thailand.
The mother subsequently was assigned counsel and she moved to dismiss all proceedingsupon the ground that Family Court lacked jurisdiction or, alternatively, that New York was aninconvenient forum. Family Court denied the motion. After several days of [*2]hearings, Family Court, among other things, granted the fatherpermission to relocate to Thailand provided that he pay the cost of a webcam for the mother, post$10,000 bond or $5,000 cash, and pay all transportation costs for the son's visitation eachsummer with the mother (M.H. v M.M., 24 Misc 3d 1213[A], 2009 NY Slip Op51438[U] [2009]). The court further conditioned the mother's parenting time upon her posting a$10,000 bond or $5,000 cash to indemnify the father in the event that he incurred costs inenforcing the order. The mother's contempt application was dismissed. The mother appeals.
The mother contends that Family Court did not have jurisdiction under Domestic RelationsLaw § 76-a and that it was an inconvenient forum pursuant to Domestic Relations Law§ 76-f. Considering first the jurisdictional issue, where, as here, a court has made a childcustody determination, the court continues to have jurisdiction until it "determines that neitherthe child, the child and one parent, nor the child and a person acting as a parent have a significantconnection with this state and that substantial evidence is no longer available in this stateconcerning the child's care, protection, training, and personal relationships" (Domestic RelationsLaw § 76-a [1] [a]; see Matter ofEisner v Eisner, 44 AD3d 1111, 1113 [2007], lv denied 9 NY3d 816 [2007]).The mother has lived continuously in this state since before 2005. Her parenting time took placein this state and, under the 2005 order, included, among other things, three weekends every twomonths (including long weekends) as well as various holidays and much of the summer. Eventspertinent to the petitions occurred when the child was in this state. There was ample evidence ofa significant connection by the child with this state for Family Court to retain jurisdiction (see Matter of Sutton v Sutton, 74AD3d 1838, 1839 [2010]).
The issue of inconvenient forum dismissal is addressed to Family Court's discretion afterconsideration of the statutory factors (see Domestic Relations Law § 76-f; Matter of Jun Cao v Ping Zhao, 2AD3d 1203, 1204 [2003], lv denied 1 NY3d 509 [2004]). Family Court noted,among other factors, that it was very familiar with the facts and issues as a result of conductingthe prior custody hearings concerning the son, transferring the matter would result in furtherdelay, and the father's financial circumstances and ability to travel were superior to those of themother. Moreover, the father, who was from Pennsylvania, did not object to Family Court'sjurisdiction, and relevant evidence involved incidents in both this state and Pennsylvania. We areunpersuaded that Family Court abused its discretion in retaining jurisdiction.
Family Court's decision allowing the child to relocate to Thailand is also challenged by themother. "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" (Matter of Solomon v Long, 68 AD3d1467, 1469 [2009] [citations omitted]; see Matter of Tropea v Tropea, 87 NY2d 727,741 [1996]). "The relevant factors to be considered by a court in reviewing an application by aparent for permission to relocate a child's primary residence include, but are not limited to, 'eachparent's reasons for seeking or opposing the move, the quality of the relationships between thechild and the custodial and noncustodial parents, the impact of the move on the quantity andquality of the child's future contact with the noncustodial parent, the degree to which thecustodial parent's and child's life may be enhanced economically, emotionally and educationallyby the move, and the feasibility of preserving the relationship between the noncustodial parentand child through suitable visitation arrangements' " (Matter of Winston v Gates, 64 AD3d 815, 816 [2009], quotingMatter of Tropea v Tropea, 87 NY2d at 740-741). Where Family Court is faced withcredibility issues in assessing the evidence presented, we typically accord deference to itsresolution of those issues (see Matter ofHills v Madrid, 57 AD3d 1175, 1176 [2008]). Family Court's determination will beupheld if supported by a sound and substantial basis in the [*3]record (seeMatter of Herman v Villafane, 9 AD3d 525, 526 [2004]).
Numerous reasons were set forth by Family Court supporting its determination that it was inthe child's best interests to permit the move. The court credited the father's explanation formoving of desiring to keep his family intact. His current spouse had been offered a transfer bythe French corporation for which she worked, with lucrative pay and benefits. While recognizingthat the move would severely restrict the mother's parenting time, Family Court observed thatsuch restriction might be positive for the child since the mother (and her parents) had frequentlyengaged in behavior that had a harmful effect on the child. This included repeated derogatorycomments about the father, attempts to manipulate the child to say negative things about thefather, and the frequent use of profanity around the child. In addition, the mother exercised poorjudgment in some of the things to which she exposed the child, including showing him aphotograph of a fetus she lost in a miscarriage. This severely upset the child and resulted in himreturning to psychological counseling. There was evidence, found credible by Family Court, thatafter visits with the mother (and her parents) the child's emotional condition was often impaired.The mother's conduct resulted in Family Court imposing a supervision requirement for visitation,and thereafter the mother failed to attend many supervised visits. The court noted that the motheroften opted to act as a victim herself, rather than make reasonable efforts to have visitation withthe child.
Family Court found that the father has provided a stable home and the mother has failed todo so. The mother currently resides with a paramour who is not permitted to have contact withher children. The court further found that the child's intellectual and emotional development wasenhanced by the father, while the mother's conduct was often a detriment to the child. The childhad visited Thailand with the father to view his potential future home and school, and he foundboth desirable. Family Court noted many benefits to the child in the move, including exposure toa different culture and enhanced educational opportunities. The attorney for the child advocatedin favor of permitting the father to move with the child. We accept Family Court's assessment ofcredibility and find that its determination has a sound and substantial basis in the record.
We agree with the mother that there was not a proper foundation established for admittingrecords of the child's psychologist as business records (see Matter of Shane MM. v Family &Children Servs., 280 AD2d 699, 701-702 [2001]). However, we are unpersuaded to reverseon such ground since there was sufficient other evidence in the record supporting the germanefindings of Family Court and its determination (see id. at 702).
There is merit to the contention, advanced by both the attorney for the child and the mother,that it was error to condition the mother's visitation on posting a $10,000 bond or $5,000 cash.This imposes upon the mother, who qualified for assigned counsel, an undue burden that is notsupported by the record and may serve to totally bar visitation (see Matter of Horike v Freedman, 37AD3d 978, 979-980 [2007]). The condition must be stricken. The father's argument that therequirement should also be stricken as to him is not before us since he did not appeal fromFamily Court's order and, in any event, his situation is significantly different from the mother's.
The mother's contempt application, which failed to include the required statutory notice, wasproperly dismissed (see Van Nostrand v Town of Denning, Ulster County, 203 AD2d687, 687 [1994]; Mente v Wenzel, 192 AD2d 862, 863 [1993], appeal dismissed andlv denied 82 NY2d 843 [1993]). Finally, as the record reveals that the mother receivedmeaningful representation, [*4]we find unavailing her contentionthat she did not receive the effective assistance of counsel (see Matter of Elizabeth HH. v Richard II., 75 AD3d 670, 670-671[2010]).
Peters, J.P., Spain, Rose and McCarthy, JJ., concur. Ordered that the order is modified, onthe facts, without costs, by striking the provision requiring petitioner to post a $10,000 bond or$5,000 cash prior to exercising visitation, and, as so modified, affirmed.