| Matter of McBryde v Bodden |
| 2012 NY Slip Op 00376 [91 AD3d 781] |
| Jnury 17, 2012 |
| Appellate Division, Second Department |
| In the Matter of Cheryl McBryde, Appellant, v AinsleyBodden, Respondent. |
—[*1] Karen P. Simmons, Brooklyn, N.Y. (Susan Cordaro and Janet Neustaetter of counsel),attorney for the child.
In related custody and visitation proceedings pursuant to Family Court Act article 6, themother appeals, as limited by her brief, from so much of an order of the Family Court, KingsCounty (O'Shea, J.), dated September 10, 2010, as, after a hearing, denied that branch of herpetition which was to modify an order of the same court dated December 2, 2004, so as to permither to relocate with the parties' child to Alabama, and awarded the father expanded visitationwith the child.
Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.
"[E]ach relocation request must be considered on its own merits with due consideration of allthe relevant facts and circumstances and with predominant emphasis being placed on whatoutcome is most likely to serve the best interests of the child. While the respective rights of thecustodial and noncustodial parents are unquestionably significant factors that must be considered. . . it is the rights and needs of the children that must be accorded the greatestweight" (Matter of Tropea v Tropea, 87 NY2d 727, 739 [1996]). In all relocation cases,the courts consider and give appropriate weight to all of the relevant factors, which include, butare 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 contacts 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 (id. at740-741).
Relocation determinations are within the sound discretion of the Family Court, which has theopportunity to observe the demeanor and assess the character and credibility of the parties andwitnesses. However, "[i]n relocation determinations, this Court's authority is as broad as that ofthe hearing court (see Matter of Jenningsv Yillah-Chow, 84 AD3d 1376, 1377 [2011]). Thus, a relocation determination will notbe permitted to stand unless it is supported by a sound and substantial basis in the record (see Matter of Clarke v Boertlein, 82AD3d 976, 977 [2011])" (Matter[*2]of Hamed v Hamed, 88 AD3d 791, 792 [2011]).
Here, the Family Court's determination that it is not in the child's best interests to relocate toAlabama has a sound and substantial basis in the record. The mother established that she had theopportunity to live rent-free in Alabama, in a home owned by her mother and stepfather, who livenearby. However, she does not have a job awaiting her in Alabama, and her evidence allegedlyshowing that the school which the child might be able to attend in Alabama was better than theschool he attends in New York, was conclusory.
The father established that he consistently exercises his right to visitation with the child, anddesires to spend more time with him, and that the mother makes minimal effort to foster therelationship between him and the child. Under the totality of the circumstances, we agree withthe Family Court that the purported benefits of the proposed relocation do not justify the drasticreduction in visitation with the father which would occur, and that, therefore, the proposedrelocation is not in the best interests of the child (see Rubio v Rubio, 71 AD3d 862 [2010]; Matter of Martino v Ramos, 64 AD3d657 [2009]).
Moreover, it was a provident exercise of the Family Court's discretion to grant the fatheradditional visitation with the child. Contrary to the mother's contention, this determination wasneither arbitrary nor punitive but, rather, was based on the express desire of both the child andthe father to spend more time together. Skelos, J.P., Hall, Austin and Miller, JJ., concur.