| Matter of Kirshy-Stallworth v Chapman |
| 2011 NY Slip Op 08867 [90 AD3d 1189] |
| December 8, 2011 |
| Appellate Division, Third Department |
| In the Matter of Adelemaria Kirshy-Stallworth,Appellant, v Lennox V. Chapman, Respondent. |
—[*1] Claire Z. Durst, Kingston, for respondent. Felicia S. Raphael, Kerhonkson, attorney for the child.
Stein, J. Appeal from an order of the Family Court of Ulster County (McGinty, J.), enteredOctober 26, 2010, which, in a proceeding pursuant to Family Ct Act art 6, granted respondent'smotion to dismiss the petition.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the parents of adaughter (born in 2002). Pursuant to a 2004 stipulated order, the mother enjoys primary legal andphysical custody of the child and the father is entitled to visitation on alternate weekends, as wellas agreed-upon holidays and vacations.[FN1] The order also contains a provision permitting the mother to move to any county that iscontiguous to Ulster County, or that "would be contiguous to Ulster County if not separated bythe Hudson River." In April 2010, the mother filed a modification petition seeking "full custody"and limiting the father's visitation to one week during the summer and one week during thechild's winter school recess on account of her [*2]plans topermanently relocate with the child to Cranberry Township, Pennsylvania, together with hercurrent husband and her other child.[FN2] The father opposed the petition. At the close of the mother's proof at trial, Family Court grantedthe father's motion to dismiss the petition, finding that the mother had failed to meet her burdenof proving that relocation was in the best interests of the child. The mother now appeals.
We affirm. A party seeking to relocate with his or her child bears "the burden of establishing,by a preponderance of the evidence, that relocation would be in the child's best interests" (DeLorenzo v DeLorenzo, 81 AD3d1110, 1111 [2011], lv dismissed 16 NY3d 888 [2011]; see Matter of Solomon v Long, 68AD3d 1467, 1469 [2009]). "Relevant factors and circumstances include 'each parent'sreasons for seeking or opposing the move, the quality of the relationships between the child andthe custodial and noncustodial parents, the impact of the move on the quantity and quality of thechild's future contact with the noncustodial parent, the degree to which the custodial parent's andchild's life may be enhanced economically, emotionally and educationally by the move, and thefeasibility of preserving the relationship between the noncustodial parent and child throughsuitable visitation arrangements' " (Matter of Vargas v Dixon, 78 AD3d 1431, 1432 [2010], quotingMatter of Tropea v Tropea, 87 NY2d 727, 740-741 [1996]; see Matter of Sofranko v Stefan, 80AD3d 814, 815 [2011]). Family Court's decision "will not be disturbed if supported by asound and substantial basis in the record" (Matter of Sofranko v Stefan, 80 AD3d at 815;see Matter of Hissam v Mancini, 80AD3d 802, 804 [2011], lv dismissed and denied 16 NY3d 870 [2011]; Matter of Herman v Villafane, 9 AD3d525, 526 [2004]).
Here, the mother's testimony established that she is disabled and receives Social Securitydisability benefits. Her husband, Robert Stallworth, suffered a work-related injury in 2007 andhas had difficulty finding suitable employment. The mother, together with Stallworth and the twochildren, live in a three bedroom mobile home in the hamlet of Accord, Ulster County. The fatherpays the mother $42 per week in child support.
The mother and Stallworth both testified that Stallworth has been offered a job by themother's uncle at a car dealership that the uncle co-owns in Pennsylvania, which willsubstantially increase Stallworth's income and make health insurance available to the entirefamily.[FN3] The mother testified that she planned to initially move into a five-bedroom townhouse where hermother and grandmother reside and believed that the child would benefit from the more affluentschool district in which the townhouse is located. In addition, the mother testified that, if theywere permitted to relocate, the child would have access to the mother's large extended family andwould be near friends she has already cultivated when vacationing there.
In dismissing the mother's petition, Family Court noted, among other things, the lack ofevidence that the community in which the child currently lives is unsatisfactory or that the child'scurrent school is not meeting her needs. The court also emphasized the uncertainty of themother's plans. For example, the court noted that it appeared that the mother intended to look forhousing separate from the home of her mother and grandmother, but did not know what [*3]community she would ultimately live in and, therefore, that it was"a little bit hard for [the court] to compare and say definitively that her plan offers the child abetter community to live in than the community that the child lives in now." Similarly, the courtnoted that there was insufficient evidence that the educational opportunities for the child wereany better in Pennsylvania than in her current school district. In addition, the court commentedon the absence of any documentary evidence to support the testimony of the mother andStallworth regarding Stallworth's alleged employment offer and the lack of detail with regardthereto.
Finally, although there was testimony regarding the mother's excellent parenting, the father'sfailure to fully avail himself of his visitation rights and the mother's promise to facilitatetelephone access between the father and the child and to transport the child to visit with thefather on a monthly basis, Family Court was in the best position to weigh such testimony and theother evidence, or lack thereof, relative to the child's best interests.[FN4] While there are indisputably benefits to the mother in relocating, according deference to FamilyCourt's credibility determinations (see Matter of Hissam v Mancini, 80 AD3d at 804), wecannot conclude that Family Court's determination that the mother failed to demonstrate thatrelocation would be in the child's best interests lacks a sound and substantial basis in the record(see Matter of Martino v Ramos, 64AD3d 657, 658 [2009]; Matter of Herman v Villafane, 9 AD3d at 527).
Mercure, A.P.J., Malone Jr., McCarthy and Egan Jr., JJ., concur. Ordered that the order isaffirmed, without costs.
Footnote 1: While the mother's petitionherein indicates that the father also has visitation on Wednesday afternoons, the 2004 order doesnot provide for such visitation.
Footnote 2: Family Court treated the petitionas a request for leave to relocate. Cranberry Township, Pennsylvania is not contiguous to UlsterCounty or along the Hudson River.
Footnote 3: The child is currently coveredby Medicaid.
Footnote 4: Although Family Court did notspecifically refer in its decision to the impact of the proposed move on the father's relationshipwith the child, its consideration of such factor can be inferred. Moreover, while the record isdevoid of any proof on behalf of the father with respect to that issue—due to the dismissalof the petition at the close of the mother's proof—there is evidence in the record that thefather's financial circumstances have limited even his ability to regularly communicate with thechild by telephone. Accordingly, it can be reasonably inferred that the mother's proposed movewould further inhibit his access to the child.