| Matter of Williams v Williams |
| 2011 NY Slip Op 09221 [90 AD3d 1343] |
| December 22, 2011 |
| Appellate Division, Third Department |
| In the Matter of Rebecca L. Williams, Appellant, v Gerald T.Williams, Respondent. (And Two Other Related Proceedings.) |
—[*1] Gerald T. Williams, Binghamton, respondent pro se. Christopher A. Pogson, Binghamton, attorney for the child.
Egan Jr., J. Appeal from an order of the Family Court of Broome County (Connerton, J.),entered May 24, 2010, which, among other things, dismissed petitioner's application, in threeproceedings pursuant to Family Ct Act article 6, to modify a prior order of custody.
In February 2002, the parties were awarded joint legal custody of their son (born in 2000)with primary physical custody to petitioner (hereinafter the mother) and extended visitation torespondent (hereinafter the father). Pursuant to the terms of the underlying order, the father hadphysical custody of the child on alternating weekends from Friday evening until Mondaymorning, as well as alternating Wednesdays through Fridays, and the parties shared holidays.Although the parties' relationship appears to have been somewhat contentious over theyears—as evidenced by the number of prior violation petitions filed by thefather—the child nonetheless enjoyed regular and meaningful access to both of his parents.
In November 2009, the mother commenced a modification proceeding seeking permission torelocate with the child from Broome County to North Carolina. The father opposed the move,cross-petitioned for, among other things, sole custody of the child and filed a [*2]violation petition. Following the fact-finding and Lincolnhearings, Family Court dismissed the parties' respective applications concluding, among otherthings, that the mother failed to demonstrate that the proposed move was in the child's bestinterest. This appeal by the mother ensued.
We affirm. As the party seeking to relocate, the mother bore the burden of demonstrating bya preponderance of the credible evidence that the proposed move would be in the child's bestinterest (see Matter of Munson vFanning, 84 AD3d 1483, 1484 [2011]; Matter of Sofranko v Stefan, 80 AD3d 814, 815 [2011]). Relevantfactors to consider include "each parent's reasons for seeking or opposing the move, the quality ofthe relationships 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 the child through suitable visitation arrangements"(Matter of Tropea v Tropea, 87 NY2d 727, 740-741 [1996]; accord Matter of Vargas v Dixon, 78AD3d 1431, 1432 [2010]; Matter ofSolomon v Long, 68 AD3d 1467, 1469 [2009]). Family Court's findings in this regard, ifsupported by a sound and substantial basis in the record, will not be disturbed (see Matter of Hissam v Mancini, 80AD3d 802, 804 [2011], lv dismissed and denied 16 NY3d 870 [2011]; Matter ofSolomon v Long, 68 AD3d at 1469).
Here, it is clear that the mother's primary motivation for the requested relocation is to be withher boyfriend, who now lives and works in North Carolina (see Matter of Leach v Santiago, 20 AD3d 715, 716 [2005], lvdenied 6 NY3d 702 [2005]). Indeed, the mother stated more than once during the course ofthe hearing that she intended to move to North Carolina regardless of the outcome of theseproceedings—even if her decision to relocate resulted in a transfer of physical custody tothe father, whom she regarded as having numerous parental shortcomings. It also is clear that theproposed move does not result in an economic benefit for the mother or otherwise advance hercareer to any meaningful degree. Similarly, although the mother testified that there were manydesirable schools in the community where her boyfriend had purchased a home, she failed tooffer any proof from which Family Court reasonably could conclude that the North Carolinaschool system represented a significant improvement over the child's current school system orthat there was some compelling reason for uprooting the child from a school district that plainlywas capable of meeting his needs (see Matter of Sofranko v Stefan, 80 AD3d at816).[FN*]Further, while the mother was willing to offer the father extended periods of visitation at herexpense, there is no question that permitting the child to relocate would result in a substantialdisruption of the weekly interaction between the father and the child and would deprive the childof access to his extended family in the area (see Matter of Munson v Fanning, 84 AD3dat 1485). Accordingly, notwithstanding the fact that the mother has been the child's primarycaregiver and that the child, in turn, has formed a positive relationship with the mother'sboyfriend, we find ample support in the record for Family Court's determination that permittingthe child to relocate to North Carolina would not be in his best interest.[*3]
Peters, J.P., Spain, McCarthy and Garry, JJ., concur.Ordered that the order is affirmed, without costs.
Footnote *: Notably, the mother testifiedthat she was very comfortable with the child's current school, where he was "an excellent studentacademically."