| Matter of Baker v Spurgeon |
| 2011 NY Slip Op 05593 [85 AD3d 1494] |
| June 30, 2011 |
| Appellate Division, Third Department |
| In the Matter of William R. Baker, Respondent, v Tiffany M.Spurgeon, Appellant. |
—[*1] Reginald H. Bedell, Elizabethtown, for respondent. Claudia A. Russell, Willsboro, attorney for the child.
Egan Jr., J. Appeal from a corrected order of the Family Court of Essex County (Meyer, J.),entered December 28, 2009, which granted petitioner's application, in a proceeding pursuant toFamily Ct Act article 6, to modify a prior order of custody.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the unmarriedparents of a daughter (born in 2001). The parties are lifelong residents of Ohio, where their childwas born and where they resided together off and on for seven years. In September 2007, thefather was convicted in Ohio of a felony and served six months in jail. Following his release in2008, he was placed on probation for five years with the condition that he relocate to EssexCounty. Although the mother and the child initially remained in Ohio, they moved to EssexCounty in October 2008, and the child was enrolled in school. Difficulties thereafter aroseregarding the father's visitation with the child, and he petitioned for custody in December 2008.By order entered December 15, 2008 upon consent, Family Court awarded the parties joint legalcustody with primary physical custody to the mother.
Difficulties between the parties persisted and, following the completion of the 2008-2009school year, the child and mother returned to Ohio. In July 2009, the father commenced theinstant proceeding seeking return of the child to Essex County and modification of the 2008custody order. At the conclusion of the hearings that followed, Family Court granted the [*2]petition, awarded the parties joint legal custody and ordered themother to either return to Essex County with the child, in which case she would retain primaryphysical custody, or, alternatively, remain in Ohio and return the child to Essex County, in whichcase the father would assume primary physical custody and she would be granted liberalvisitation. This appeal by the mother ensued.[FN1]
Initially, we note that inasmuch as the child resided in this state for less than six months priorto the father's commencement of the initial custody proceeding in December 2008, New York didnot qualify as the "home state" of the child (see Domestic Relations Law § 75-a[7]; § 76 [1] [a])[FN2]and, therefore, Family Court did not have subject matter jurisdiction to entertain such applicationor render the resulting December 2008 custody order. Accordingly, we must treat the instantproceeding as an initial custody determination rather than as a modification proceeding.
Turning to the merits, "[t]he principal concern in any child custody dispute is the bestinterests of the child, to be determined by reviewing such factors as maintaining stability for thechild, the child's wishes, the home environment with each parent, each parent's past performance,relative fitness, ability to guide and provide for the child's overall well-being, and the willingnessof each parent to foster a relationship with the other parent" (Porcello v Porcello, 80 AD3d 1131, 1133 [2011] [internalquotation marks and citation omitted]; see Farina v Farina, 82 AD3d 1517, 1518 [2011]; Matter of Grant v Grant, 47 AD3d1027, 1028-1029 [2008]). Because we are treating this as an initial custody determination,strict application of the relevant factors to be considered in a potential relocation as set forth inMatter of Tropea v Tropea (87 NY2d 727 [1996]) is not required (see Matter of Lynch v Gillogly, 82AD3d 1529, 1530 [2011]; Matter ofSchneider v Lascher, 72 AD3d 1417, 1417 [2010], lv denied 15 NY3d 708[2010]; Malcolm v Jurow-Malcolm,63 AD3d 1254, 1255 [2009]). Rather, the parent's decision to relocate, as well as "the effectan award of custody would have on the child's relationship with the noncustodial parent," areother relevant factors to consider (Matter of Lynch v Gillogly, 82 AD3d at 1530; seeMalcolm v Jurow-Malcolm, 63 AD3d at 1256).
Here, the record establishes that, although the father did help take care of the child whileliving with the mother in Ohio, the mother was the primary caregiver throughout the child's life.Notably, the father did not live with or substantially care for the child, except during brief periodsof visitation, after he moved out of the parties' shared home in August 2007, did not know thenames of her teachers or friends at school, did not attend parent-teacher conferences, rarelyattended the child's extracurricular activities and has never taken the child to a doctor'sappointment. Both parties' living arrangements appear to be adequate and, at the time of thehearing, the mother was employed part time and was pursuing a medical assistant degree. Thefather does not work but, rather, receives Social Security disability benefits due to an unspecifiedmental illness that apparently includes an "explosive disorder," for which he receives counseling.In addition, the father has a lengthy history of alcohol abuse and has had several alcohol-related[*3]driving offenses—despite not possessing a validdriver's license. The parties' relationship has been generally contentious, as evidenced by aharassment charge lodged against the mother following an altercation with the father's girlfriendand the father's history of domestic violence against the mother. In this regard, it appears that thefather occasionally opted to forgo visitation and telephone calls with the child in order to avoidarguments with the mother.
As to the mother's relocation with the child, the mother testified that she returned to Ohioafter losing her job in New York and, as noted previously, was pursuing a medical assistantdegree at the time of the hearing. The record reflects that, in addition to being lifelong residentsof Ohio prior to moving here, both parties have significant ties to and extended family living inthat state, including the father's grandparents and his other daughter, with whom the child enjoysa close relationship. The record also indicates that the mother's family is available to assist herand care for the child while she works and pursues her degree.
Based upon our review of the record as a whole, and giving due consideration to all of therelevant factors, we find that Family Court's determination lacks a sound and substantial basis inthe record and that it is in the child's best interest for custody to be awarded to the mother. Whilewe acknowledge that this results in the child residing a significant distance from the father, it wasthe father's criminal conduct that prompted his move to New York in the first instance andtriggered the resulting disruption of his relationship with his daughter. Until the father's probationexpires, thereby presumably alleviating any obstacle to his return to Ohio, the father'srelationship with his child may be maintained through the exercise of appropriate visitation, andwe remit this matter to Family Court for the purpose of devising such a schedule. The parties'remaining contentions, to the extent not specifically addressed, have been examined and found tobe lacking in merit.
Peters, J.P., Rose, Malone Jr. and Stein, JJ., concur. Ordered that the corrected order isreversed, on the law, without costs, custody awarded to respondent and matter remitted to theFamily Court of Essex County for further proceedings not inconsistent with this Court's decision.
Footnote 1: During the pendency of thisappeal, the parties commenced additional proceedings in Family Court that are pending at thistime.
Footnote 2: Nor does it appear that any ofthe remaining jurisdictional predicates would apply here (see Domestic Relations Law§ 76 [1] [a]-[d]).