| Matter of Adams v Bracci |
| 2012 NY Slip Op 00143 [91 AD3d 1046] |
| Jnury 12, 2012 |
| Appellate Division, Third Department |
| In the Matter of Ryan Adams, Respondent, v Alecia Bracci,Appellant. (And Eight Other Related Proceedings.) |
—[*1] Ryan Adams, Blue Bell, Pennsylvania, respondent pro se. Donald J. Schwartz, Oneonta, attorney for the child.
McCarthy, J. Appeal from an order of the Family Court of Delaware County (Becker, J.),entered September 2, 2010, which, among other things, granted petitioner's application, in nineproceedings pursuant to Family Ct Act article 6, to modify a prior order of custody.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the parents of adaughter (born in 2004). In 2007, Family Court entered a consent order granting joint legalcustody to the parties, primary physical custody to the mother and visitation to the father. In July2008, after both parties filed petitions and the court held a hearing, the court awarded sole legaland primary physical custody to the father, with visitation to the mother. This Court modifiedthat order by reinstating joint legal custody, because the father had only sought a change inphysical custody and the mother was not on notice that legal custody might be altered, butotherwise affirmed (Matter of Adams vBracci, 61 AD3d 1065 [2009], lv denied 12 NY3d 712 [2009]). Shortly after thisCourt's decision was rendered, the father, who is enlisted in the Marines, was informed by themilitary that he would be transferred from his station in the Town of Newburgh, Orange Countyto Philadelphia, Pennsylvania. In May 2009, the father filed a petition indicating that he wasrelocating due to his military orders, and seeking a change in the visitation schedule. Both partiesfiled numerous other petitions, with each party seeking sole [*2]custody. Following a hearing, Family Court awarded the father solelegal and physical custody and created a new visitation schedule for the mother. The motherappeals.
Although Family Court should have analyzed this matter as a relocation proceeding, the courtdid not err in awarding sole custody to the father. In contrast to an ordinary modificationproceeding, where the petitioning party must demonstrate a change in circumstances and that amodification is in the child's best interests, a relocation is accepted as a change in circumstances,requiring the parent seeking the move to demonstrate that relocating the child with the custodialparent is in the child's best interests. Factors to consider in this situation 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 Tropea v Tropea, 87 NY2d 727, 740-741[1996]; see Matter of Sniffen vWeygant, 81 AD3d 1054, 1055 [2011], appeals dismissed 16 NY3d 886 [2011],17 NY3d 884 [2011]).
Here, the father was required to move due to military orders. Although he chose to renew hiscontract and remain in the Marines, that choice provided him with stability in employment duringturbulent economic times, as well as benefits including health insurance for his family. After thetransfer, he worked regular daytime hours, permitting him to be at home with the child in theevening and on weekends. The father had a stable living environment with his wife and their twochildren. Before the move, the father lived approximately two hours away from the mother. Afterthe move, the drive took approximately five hours each way. While the drive was longer, it didnot directly affect the mother's ability to exercise her visitation, which had been one weekend permonth and a second optional weekend per month, plus summer and holiday visits. Following the2008 transfer of custody to the father, the mother quit her job to pursue an Associate'sdegree,[FN1]leaving her with no source of income (compare Matter of Siler v Wright, 64 AD3d 926, 928 [2009]). Shewas then unable to pay her court-ordered child support, resulting in the suspension of her driver'slicense. This complicated transportation for visits.
Each parent had a good relationship with the child, but they agreed that they could notcommunicate with one another or cooperate regarding the raising of their child, rendering jointcustody inappropriate (see Matter ofClupper v Clupper, 56 AD3d 1064, 1065 [2008]). Family Court found that the fathermade efforts to contact the mother, while she frustrated efforts at communication. The motherhad a very close relationship with the maternal grandmother, who the court saw as toxic to theparents' relationship and ability to communicate. Additionally, the father testified that when thechild returned from visits, she was dirty and defiant.[*3]
The parties were unable to agree upon medical care forthe child. In previously transferring custody to the father, Family Court noted that the childsuffered major dental problems while in the mother's care (Matter of Adams v Bracci, 61AD3d at 1067). Despite her approving of dental treatment without consulting the father, themother complained that he sought treatment for the child without consulting her and she refusedto consent to treatment. Her attorney contacted the child's dentist, which caused the dentist torefuse to provide further treatment without a court order. Contrary to the mother's arguments thatthe father neglected the child's medical needs, he testified that he brought the child to the doctoror specialists for each medical condition that the mother mentioned, and that he followed therecommendations of those medical professionals.
The way each parent handled allegations of abuse signal how they would protect the childand deal with the other party. The mother and grandmother made numerous allegations ofphysical, emotional and sexual abuse and neglect by the father and stepmother. Most of theseallegations were raised in court petitions or affidavits, not raised with the father, police ormedical professionals. Upon hearing of each allegation, the father brought the child to the doctor,a sexual abuse expert or consulted the Department of Social Services. The father also madeallegations of improper behavior against the mother and grandmother. All reports to childprotective services concerning the father were unfounded, but one concerning the mother wasindicated. As noted earlier, Family Court felt that the grandmother interfered with and impededthe father's relationship with the child, as well as his ability to communicate with the mother, andthat the mother acquiesced in the grandmother's actions.
The father offered consistency in the child's life and was more open to foster the child'srelationship with the mother, while the mother thwarted attempts at communication and appearedless likely to encourage any relationship between the child and the father. Due to the parties'well-demonstrated inability to effectively communicate and cooperate for the well-being of theirdaughter, and giving deference to Family Court's credibility and factual determinations (seeMatter of Siler v Wright, 64 AD3d at 928), the record supports the court's determination thatthe child's best interests are served by permitting the father to relocate and awarding him solecustody (see Matter of Hills vMadrid, 57 AD3d 1175, 1176 [2008]).
Family Court did not err in reducing the mother's visitation to one weekend permonth[FN2]and requiring her to exercise that visitation within a 50-mile radius of the father's home.Restricting the location of visitation relieved the child of dealing with the long drive, which tookapproximately five hours (see Matter ofMoore v Schill, 44 AD3d 1123, 1123 [2007]). Considering the acrimony between theparties, the reduction of visitation exchanges would also decrease the child's exposure to anyforced interaction between her mother and father. Accordingly, we will not disturb theparameters set by the court on the mother's visitation (see DeLorenzo v DeLorenzo, 81 AD3d 1110, 1112 [2011], lvdismissed 16 NY3d 888 [2011]; seealso Matter of Franklin v Richey, 57 AD3d 663, 664 [2008]).
Family Court ordered that the mother be responsible for all transportation. As this [*4]aspect of the order was based mainly on credibilitydeterminations—finding the mother mainly responsible for the transportation difficulties,including the self-inflicted suspension of her license—we will not disturb it.
Peters, J.P., Rose and Egan Jr., JJ., concur. Ordered that the order is affirmed, without costs.
Footnote 1: While the mother's address wasin Delaware County, she testified that she attended Hudson Valley Community College inRensselaer County. She did not explain whether she had another residence near school orwhether she commuted approximately two hours each way every day to attend her classes.
Footnote 2: Under the previous order, themother had visitation one weekend per month, with a second weekend available if the motherchose to visit. Both the prior and current orders provide the mother with summer and holidayvisitation.