| Matter of Clarke v Boertlein |
| 2011 NY Slip Op 02006 [82 AD3d 976] |
| March 15, 2011 |
| Appellate Division, Second Department |
| In the Matter of Roger W. Clarke, Respondent, v TammyBoertlein, Appellant. |
—[*1] Blumberg, Cherkoss, Fitz Gibbons & Blumberg, LLP, Amityville, N.Y. (Val Cherkoss ofcounsel), Attorney for the Children.
In a child custody proceeding pursuant to Family Court Act article 6, the mother appeals, aslimited by her brief, from so much of an amended order of the Supreme Court, Suffolk County(IDV Part) (Buetow, Ct. Atty. Ref.), dated October 30, 2009, as, after a hearing, and uponawarding her custody of the parties' three children, denied that branch of her motion which wasfor permission to relocate with the parties' three children to Pennsylvania.
Ordered that the amended order is reversed insofar as appealed from, on the facts and in theexercise of discretion, with costs, that branch of the mother's motion which was for permission torelocate with the parties' three children to Pennsylvania is granted, and the matter is remitted tothe Supreme Court, Suffolk County (IDV Part), for a hearing to establish an appropriatepostrelocation visitation schedule for the father.
The parties are the parents of three children, ages 10, 6, and 4. In August 2008 the motherremoved the children from their home in Yaphank, New York, and moved to Bellefonte,Pennsylvania, where one of her sisters resided, allegedly to escape the father's domestic violence.The mother obtained an order of protection and temporary custody from a court in Pennsylvania.In November 2008 the mother reconciled with the father and returned with the children to NewYork, only to leave with the children again to Pennsylvania in April 2009.
The father then commenced this proceeding in the Supreme Court, Suffolk County (IDVPart), seeking custody of the children. The mother moved for an award of custody and permissionto relocate with the children to Pennsylvania. After a hearing, the Supreme Court awarded themother custody, but denied her request for permission to relocate with the children toPennsylvania. The mother appeals.
The disposition of a petition for permission to relocate with minor children rests upon adetermination of the best interests of the children (see Matter of Tropea v Tropea, 87NY2d 727, 739 [1996]; Matter ofCollins v Bogart, 77 AD3d 940 [2010]; Matter of Otero v Nieves, 77 AD3d 756 [2010]; Matter of Tabernuro v Jones, 23 AD3d667 [2005]; Matter of Brackman v Debrest, 276 AD2d 483 [2000]). Moreover,[*2]"[d]espite the multitude of factors that may properly be consideredin the context of a relocation petition, the impact of the move on the relationship between thechild[ren] and the noncustodial parent will remain a central concern" (Matter of Collins vBogart, 77 AD3d at 940 [internal quotation marks omitted], quoting Matter of Martino v Ramos, 64 AD3d657, 657-658 [2009], quoting Matter of Tropea v Tropea, 87 NY2d at 739). ThisCourt's authority in relocation determinations is as broad as that of the hearing court (seeMatter of McGee v McGee, 224 AD2d 832, 835 [1996]; see generally Matter of LouiseE.S. v W. Stephen S., 64 NY2d 946, 947 [1985]), and while we are mindful that the hearingcourt has an advantage in being able to observe the demeanor and assess the credibility ofwitnesses, we "would be seriously remiss if, simply in deference to the finding of [the hearingcourt]" (Matter of Gloria S. v Richard B., 80 AD2d 72, 76 [1981]), we allowed arelocation determination to stand where it lacks a sound and substantial basis in the record (see Matter of Hissam v Mancini, 80AD3d 802, 804 [2011]; Matter of Collins v Bogart, 77 AD3d at 940; see generally Matter of Larkin v White,64 AD3d 707, 708-709 [2009]).
Upon our review of the record, we find that the Supreme Court's determination to deny themother permission to relocate with the children to Pennsylvania lacks a sound and substantialbasis in the record. The record demonstrates that the mother has at all times served as the primarycaregiver to the children and has displayed a continued commitment to their needs, whereas thefather showed little involvement with the children when the parties lived together. The SupremeCourt failed to give enough weight to the mother's allegations of domestic violence, often in thepresence of the children, which permeated the parties' relationship and caused the mother toremove herself and the children from the parties' home. While the father denied that there wasany domestic violence in the home, the Supreme Court noted that the father exhibited his temperduring the course of the hearing when he left the witness stand while yelling at the mother'sattorney. The father also admitted that he engaged in harassing and intimidating behavior afterthe mother left, such as calling the mother's cell phone numerous times each day, questioning theoldest child as to the mother's whereabouts, and placing a tracking device on the mother's car.
Contrary to the Supreme Court's finding and the assertion of the attorney for the children, themother's move to Pennsylvania does not appear to have been motivated by bad faith but, rather,was an opportunity to escape domestic violence in the home, to reside in close proximity tosupportive family members, and to secure affordable housing. The mother testified as to herunsuccessful attempts to obtain affordable housing on Long Island, and compared those attemptsto her ability to secure a suitable rental home in Pennsylvania near where her sister resides withher family and the maternal grandmother. Testimony also revealed that the children wereadapting well to their new surroundings, and were living with their half-brother in closeproximity to their aunt and maternal grandmother, and that the two oldest children were attendingschool and receiving educational services. In contrast, the record suggests that the father opposedthe relocation in order to harass the mother and in order to keep the mother in close proximity tofacilitate his efforts to reconcile with her (see Matter of Sara ZZ. v Matthew A., 77 AD3d 1059, 1060-1061[2010]).
Although the mother's relocation will inevitably have an impact upon the father's ability tospend time with his children, a liberal visitation schedule, including extended visits duringsummer and school vacations, will allow for the continuation of a meaningful relationshipbetween the father and children (seeMalcolm v Jurow-Malcolm, 63 AD3d 1254, 1257-1258 [2009]; Bruno v Bruno,47 AD3d 606 [2008]; Matter of Cooke vAlaimo, 44 AD3d 655 [2007]). Such visitation will further allow the children to spendmeaningful time with their paternal grandmother, with whom they have a good relationship.
Under the totality of the circumstances, we find that the hearing testimony established thatthe children's best interests would be served by permitting the mother to relocate to Pennsylvania.Therefore, we remit the matter to the Supreme Court, Suffolk County (IDV Part), for a hearing toestablish a postrelocation visitation schedule (see Matter of Wisloh-Silverman v Dono, 39 AD3d 555 [2007]).
We note that the relocation of the children to Pennsylvania should be scheduled so as tominimize any interference with the children's school year. Rivera, J.P., Dickerson, Lott andRoman, JJ., concur.