| Matter of Retamozzo v Moyer |
| 2012 NY Slip Op 00792 [91 AD3d 957] |
| Jnury 31, 2012 |
| Appellate Division, Second Department |
| In the Matter of Cherrie Retamozzo, Appellant, v DavidMoyer, Respondent. (Proceeding No. 1.) In the Matter of David Moyer, Respondent, v CherrieRetamozzo, Appellant. (Proceeding No. 2.) |
—[*1] Coffinas & Lusthaus, P.C., Brooklyn, N.Y. (Meredith A. Lusthaus of counsel), forrespondent. Karen P. Simmons, Brooklyn, N.Y. (Anta CissÉ-Green and Barbara H. Dildine ofcounsel), attorney for the child.
In related child custody and visitation proceedings pursuant to Family Court Act article 6, themother appeals, as limited by her brief, (1) from so much of an order of the Family Court, KingsCounty (Krauss, J.), dated June 14, 2010, as, after a hearing, denied her petition to modify astipulation of settlement dated November 30, 2007, which was incorporated but not merged intoa judgment of divorce dated March 31, 2008, so as to award her sole custody of the subject childand for permission to relocate to Colorado with the subject child, and (2) from so much of anorder of the same court dated July 9, 2010, as, after a hearing, granted the father's petition tomodify the visitation provision set forth in the stipulation so as to award him visitation onalternate weekends and to direct that the subject child must be left in the care of the paternalgrandmother when both parties have military training or are both otherwise unavailable to carefor the child.
Ordered that the orders are affirmed insofar as appealed from, without costs ordisbursements.
"When reviewing a custodial parent's request to relocate, the court's primary focus must beon the best interests of the child" (Matter of Giraldo v Gomez, 49 AD3d 645, 645 [2008]; seeMatter of Tropea v Tropea, 87 NY2d 727, 739 [1996]; Eschbach v Eschbach, 56NY2d 167 [1982]; Matter of Hamed vHamed, 88 AD3d 791, 791 [2011]; Matter of Said v Said, 61 AD3d 879, 881 [2009]). "Relocation maybe allowed if the custodial parent demonstrates, by a preponderance of the evidence, that theproposed move is in the child's best interests" (Matter of Steadman v Roumer, 81 AD3d 653, 654 [2011]).[*2]"Although each custodial parent's request for relocation must bedecided on its own merits, the factors to be considered include, but are not limited to, eachparent's reasons for seeking or opposing the move, the quality of the relationships between thechildren and each parent, the impact of the move on the quantity and quality of the children'sfuture contact with the noncustodial parent, the degree to which the lives of the custodial parentand the children may be enhanced economically, emotionally, and educationally by the move,and the feasibility of preserving the relationship between the noncustodial parent and the childrenthrough suitable visitation arrangements" (Matter of Said v Said, 61 AD3d at 881; seeMatter of Tropea v Tropea, 87 NY2d at 740-741). "Despite the multitude of factors that mayproperly be considered in the context of a relocation petition, 'the impact of the move on therelationship between the child and the noncustodial parent will remain a central concern' " (Matter of Martino v Ramos, 64 AD3d657, 657-658 [2009], quoting Matter of Tropea v Tropea, 87 NY2d at 739).
Here, the record contains a sound and substantial basis for the Family Court's denial of thatbranch of the mother's petition which was for permission to relocate from Brooklyn to Coloradowith the subject child (see Matter of Tropea v Tropea, 87 NY2d 727 [1996]; Matter of Clarke v Boertlein, 82 AD3d976, 977 [2011]). The testimony at the hearing revealed that, although the mother has beenthe primary custodial parent, both parents have a close and loving relationship with the child andhave taken an active role in his upbringing and well-being. It is undisputed that, since the parties'separation, the father has had regular and frequent visitation, often for substantial periods of timeat his home in Pennsylvania (see Matter of Martino v Ramos, 64 AD3d at 658; Matter of Friedman v Rome, 46 AD3d682, 683 [2007]; Matter of Huston v Jones, 252 AD2d 502, 503 [1998]). During thistime, the child has developed a strong and loving relationship not only with his father, but alsowith various members of the father's extended family. Accordingly, the mother failed todemonstrate by a preponderance of the evidence that the proposed relocation would be in thechild's best interests (see Matter of Martino v Ramos, 64 AD3d at 658).
In addition, the mother failed to demonstrate that there was a sufficient change incircumstances since the time of the stipulation of settlement such that modification of the jointcustody arrangement to award her sole legal custody was in the best interests of the child (see Matter of DiCiacco v DiCiacco, 89AD3d 937 [2011]; Mathie vMathie, 65 AD3d 527, 529 [2009]; Matter of Risman v Linke, 235 AD2d 861,861-862 [1997]). Moreover, the record demonstrates that the parties are not so antagonistic,embattled, and unable to set aside their differences that they cannot make joint decisions for thegood of the child (see Bliss v Ach, 56 NY2d 995, 998 [1982]; Braiman vBraiman, 44 NY2d 584, 589-590 [1978]).
Contrary to the mother's contention, the Family Court's determination to modify the existingvisitation arrangement was supported by a sound and substantial basis in the record. The fatherdemonstrated that there had been a change in circumstances such that modification is required toprotect the best interests of the child (seeMatter of Peralta v Irrizary, 76 AD3d 561, 562 [2010]; see also Family Ct Act§ 652 [a]). Accordingly, the Family Court properly granted the father's petition to modifythe visitation provision set forth in a stipulation of settlement dated November 30, 2007, so as toaward him visitation on alternate weekends and to direct that the subject child must be left in thecare of the paternal grandmother when both parties have military training or are both otherwiseunavailable to care for the child.
The mother's remaining contentions are without merit. Florio, J.P., Chambers, Hall andMiller, JJ., concur.