| Matter of Sofranko v Stefan |
| 2011 NY Slip Op 00058 [80 AD3d 814] |
| January 6, 2011 |
| Appellate Division, Third Department |
| In the Matter of Timothy D. Sofranko, Appellant, v Kathryn E.Stefan, Respondent. (And Another Related Proceeding.) |
—[*1] Marian J. Cerio, Canastota, for respondent. Karin H. Marris, Syracuse, attorney for the child.
Cardona, P.J. Appeal from an order of the Family Court of Madison County (McDermott, J.),entered November 20, 2009, which, among other things, dismissed petitioner's application, intwo proceedings pursuant to Family Ct Act article 6, for modification of a prior order of custody.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the parents oftwo children, Dmitri (born in 1997) and Julian (born in 1999). The parties divorced in November2005 and the divorce judgment incorporated a prior written agreement providing for joint legaland physical custody of the children. At that time, the parties lived in close proximity and thechildren alternated weeks with each parent. Subsequently, the parties began new relationshipsand eventually each remarried; however, communication between the parties becameincreasingly strained and acrimonious. In 2008, the father was terminated from his employmentand his search for a comparable position in New York was unsuccessful. In early 2009, he foundemployment in Kentucky where he relocated with his new wife and her children. The fatherthereafter commenced the first of these proceedings seeking to modify the existing custodyagreement by granting him physical custody of the children and permission to relocate them toKentucky. The mother filed a cross petition seeking physical custody. Following a trial, [*2]Family Court dismissed the father's petition, granted the mother'scross petition and provided a detailed visitation schedule for the father. The court alsodetermined that joint legal custody was no longer feasible and awarded sole legal custody to themother. This appeal ensued.
At the outset, we note that the parties do not challenge the finding that the father's relocationto Kentucky constituted a sufficient change in circumstances justifying modification of theexisting physical custody arrangement (see Thompson v Smith, 277 AD2d 520, 521[2000]). Accordingly, the first issue is the propriety of Family Court's denial of the father'srequest for primary physical custody of the children in Kentucky and grant of the mother'sopposing request that they remain with her in New York. Notably, a parent who wishes to modifya prior custody arrangement to permit relocation with the children must establish by apreponderance of the evidence that the relocation is in the children's best interests (see Matterof Grathwol v Grathwol, 285 AD2d 957, 958 [2001]). This inquiry requires consideration ofsuch factors as "the quality of the relationships between the child[ren] and the custodial andnoncustodial parents, the impact of the move on the quantity and quality of the child[ren]'s futurecontact with the noncustodial parent, the degree to which the custodial parent's and child[ren]'slife may be enhanced economically, emotionally and educationally by the move, and thefeasibility of preserving the relationship between the noncustodial parent and child[ren] throughsuitable visitation arrangements" (Matter of Tropea v Tropea, 87 NY2d 727, 740-741[1996]). Since Family Court is in the best position to make factual findings and credibilitydeterminations, its decision will not be disturbed if supported by a sound and substantial basis inthe record (see Matter of Miller vMurray, 61 AD3d 1295, 1296-1297 [2009]).
Upon review of Family Court's well-reasoned decision, we find no basis to disturb the awardof physical custody to the mother. With respect to the children's relationships with the parties'respective families, the court noted that the children get along well with the father's new wife andher children. As for their mother's home, the court similarly found that they have a goodrelationship with the mother's husband and his two children, as well as "a close bond" with theirhalf sister. Regarding the economic aspects of the move to Kentucky, the court noted that, evenaccepting the father's representation that employment in Kentucky was the only viable option forhim, the fact remains that his income was reduced as a result of the change in jobs. Turning toeducational concerns, the court noted that the father failed to offer any proof from which thecourt could conclude that the Kentucky school system would be a significant improvement overthe children's current school system or that it is necessary to uproot the children from schoolswhere they are already settled and showing positive performance to a new and unfamiliarenvironment (see Matter of Solomon vLong, 68 AD3d 1467, 1469-1470 [2009]). Given this proof as well as evidenceestablishing the mother's "relative fitness to guide the child[ren]'s intellectual and emotionaldevelopment and provide for [their] physical needs" (Matter of Dickerson v Robenstein, 68 AD3d 1179, 1180 [2009]),Family Court's determination as to physical custody need not be disturbed.
Turning to Family Court's decision to grant sole legal custody to the mother, we note thatjoint custody is inappropriate where the parties have demonstrated mutual hostility and aninability to cooperate (see Matter of Yetter v Jones, 272 AD2d 654, 656 [2000]). In lightof the proof herein that the amicable relationship between the parties became progressively moreacrimonious, a change of circumstances warranting modification of the prior joint legal custodyorder has been shown (see Ehrenreich vLynk, 74 AD3d 1387, 1388 [2010]; Matter of Bjork v Bjork, 58 AD3d 951,953-954 [2009], lv denied 12 NY3d 708 [2009]; Matter of Martin v Martin, 45 AD3d 1244, 1245 [2007]). Afterreviewing the parties' respective strengths and weaknesses, [*3]the court determined that sole legal custody to the mother wouldbest promote the children's best interests.
Significantly, while Family Court took care to note that there were demonstrated instanceswhere both households allowed their anger to erupt in front of the children to some extent, it alsofound that the father has shown consistently poorer judgment in that regard. The court wasparticularly concerned about an incident occurring on Halloween night in 2007 which resulted inan order of protection issued in favor of the mother and her husband against the father. As for theissue of which parent could better foster communication regarding matters concerning thechildren, the court found that the father exacerbated difficulties in communication by eitherencouraging, or failing to discourage, his new wife from interjecting herself in the middle ofconflicts between the parties. In contrast, the court noted that the mother was able to demonstratesome flexibility in her dealings with the father and acknowledged the importance of the childrenhaving a good relationship with their father. Thus, given the distance between the parties'respective homes and the evidence demonstrating, among other things, the mother's ability tomaintain stability in the children's lives, we conclude that there is a sound and substantial basisfor the court's award of sole legal custody to the mother.
We have examined the father's remaining arguments, including his claim that Family Courtimpermissibly limited his cross-examination of the mother, and find them to be unpersuasive.
Mercure, Malone Jr., Stein and Garry, JJ., concur. Ordered that the order is affirmed, withoutcosts.