| Matter of Jennings v Yillah-Chow |
| 2011 NY Slip Op 04678 [84 AD3d 1376] |
| May 31, 2011 |
| Appellate Division, Second Department |
| In the Matter of Anthony C. Jennings,Respondent, v Masiree Yillah-Chow, Appellant. |
—[*1] Steven Banks, New York, N.Y. (Tamara A. Steckler and Diane Pazar of counsel), Attorneyfor 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 order of the Family Court, Kings County (Gruebel, J.),dated May 27, 2010, as, after a hearing, denied her cross petition to modify a prior custody orderdated March 19, 2007, by permitting her to relocate with the subject children to Maryland.
Ordered that the order is reversed insofar as appealed from, on the facts and in the exercise ofdiscretion, without costs or disbursements, the mother's cross petition is granted, and the matteris remitted to the Family Court, Kings County, for further proceedings to establish an appropriatepostrelocation visitation schedule for the father.
"The disposition of a petition for permission to relocate with minor children rests upon adetermination of the best interests of the children" (Matter of Clarke v Boertlein, 82AD3d 976, 976-977 [2011]; see Matter of Tropea v Tropea, 87 NY2d 727, 739 [1996];Matter of Wilson v Kilkenny, 73 AD3d 796, 797 [2010]). "Relocation may be allowed ifthe custodial parent demonstrates, by a preponderance of the evidence, that the proposed move isin the child's best interests" (Matter of Steadman v Roumer, 81 AD3d 653, 654 [2011];see Matter of Harrsch v Jesser, 74 AD3d 811, 812 [2010]). When evaluating whether aproposed move will be in the child's best interests, the factors to be considered "include, but arecertainly not 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). Although the hearing court has an advantage inbeing able to observe the demeanor and assess the credibility of witnesses, we would be seriouslyremiss if, simply in deference to the finding of the hearing court, we allowed a relocationdetermination to stand where it lacks a sound and substantial basis in the record (see Matterof Clarke v Boertlein, 82 AD3d 976 [2011]). Moreover, in relocation determinations, ourauthority is as broad as that of the hearing court (id.).
Here, the mother established that the children's best interests would be served by permittingthe requested relocation (see Matter of Wilson v Kilkenny, 73 AD3d at 797). In seekingto relocate with [*2]the subject children from Brooklyn to Laurel,Maryland, the mother testified that she wanted to provide them with a "better life" (see Matterof Clarke v Boertlein, 82 AD3d 976 [2011]). The mother stated that she wanted to move thechildren away from the gun violence and drug-dealing occurring in her Brooklyn neighborhood.In Maryland, the mother rents a two-bedroom apartment in a complex that includes amenitiessuch as a swimming pool, volleyball court, and soccer and barbeque areas. Her apartment is onlya short distance from an elementary and middle school that her children can attend, and themiddle school is equipped to handle the older child's special needs. Currently, the older child isattending a school that requires him to travel up to four hours round trip. The mother testified asto past instances where the father struck her and the older child, which the court credited. Inaddition, the position of the Attorney for the Children is that relocation is in the children's bestinterests, which, since not contradicted by the record, is entitled to some weight (see Matterof Ciccone v Ciccone, 74 AD3d 1337, 1338 [2010]; Matter of Wisloh-Silverman vDono, 39 AD3d 555, 557 [2007]). Although the mother's relocation will inevitably have animpact upon the father's ability to spend time with the children, a liberal visitation schedule,including extended visits during summer and school vacations, will allow for the continuation ofa meaningful relationship between the father and the children (see Matter of Clarke vBoertlein, 82 AD3d 976 [2011]).
Accordingly, the mother's cross petition should be granted, and the matter remitted to theFamily Court, Kings County, for further proceedings to establish a post-relocation visitationschedule. Mastro, J.P., Dickerson, Chambers and Roman, JJ., concur.