| Matter of Feathers v Feathers |
| 2012 NY Slip Op 04256 [95 AD3d 1622] |
| May 31, 2012 |
| Appellate Division, Third Department |
| In the Matter of Douglas R. Feathers, Respondent, v Jennifer R.Feathers, Now Known as Jennifer Kenney, Appellant. (And Another RelatedProceeding.) |
—[*1] David L. Gruenberg, Troy, for respondent. Michelle I. Rosien, Philmont, attorney for the children.
McCarthy, J. Appeal from an order of the Family Court of Columbia County (Nichols, J.),entered March 18, 2011, which, among other things, dismissed respondent's application, in twoproceedings pursuant to Family Ct Act article 6, to modify a prior order of custody and visitation.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the parents oftwo children (born in 1996 and 1999). The parties' 2006 stipulation of settlement, laterincorporated into a judgment of divorce, provided for joint legal custody, primary residentialcustody with the mother and parenting time with the father on the first, third and fifth weekendsof each month, every Thursday evening after school until 7:30 p.m., Tuesday evenings in theweek following the mother's weekend, plus extra time during summers and school vacations. In2010, the mother became engaged to and married a man who shared custody of five daughtersand lived in Warren County. His residence was 112 miles from the mother's home—theparties' former marital residence where the children had lived for their entire lives—in theTown of New Lebanon, Columbia County. The father lived in the Town of Petersburg,Rensselaer County, 105 [*2]miles or a drive of almost two hoursaway from the home of the mother's new husband.
After the mother notified the father, as required by their stipulation, of her intent to movewith the children to Warren County, he filed a petition seeking primary residential custody. Themother filed a petition seeking approval to relocate and to establish a new parenting schedule.Following a hearing, Family Court found that relocation would not be in the children's bestinterests and dismissed the mother's petition. Primarily based upon the mother's testimony thatshe would not move without the children, the court dismissed the father's petition as well. Themother appeals.
Family Court's determination had a sound and substantial basis in the record. The mother, asthe party seeking to relocate, had the burden to establish by a preponderance of the evidence thather proposed move would be in the children's best interests (see Matter of Williams v Williams, 90 AD3d 1343, 1344 [2011];Matter of Munson v Fanning, 84AD3d 1483, 1484 [2011]). Relevant factors to consider include "each parent's reasons forseeking or opposing the move, the quality of the relationships between the child and the custodialand noncustodial parents, the impact of the move on the quantity and quality of the child's futurecontact with the noncustodial parent, the degree to which the custodial parent's and child's lifemay be enhanced economically, emotionally and educationally by the move, and the feasibility ofpreserving the relationship between the noncustodial parent and the child through suitablevisitation arrangements" (Matter of Tropea v Tropea, 87 NY2d 727, 740-741 [1996]). Ifsupported by the record, Family Court's findings and decision will not be disturbed (seeMatter of Williams v Williams, 90 AD3d at 1344).
The mother sought to move to live with her new husband and his children. The fatheropposed the move because the children told him that they did not want to move and the distancewould prevent him from seeing his children as frequently. Both parties had good relationshipswith the children and were actively involved in their lives. The father previously exercised all ofhis weekend parenting time and the great majority of his other parental time. The move woulddeprive him of three dinner visits every two weeks and make it difficult for him to attend thechildren's school and athletic activities. The mother quit her job in anticipation of the move andhad not submitted any resumes or applications for new jobs, mostly because she was waiting tosee if the move would be approved. She intended to work less days per week because she wasnow married. Although her husband was employed and earned a comfortable salary, he had childsupport obligations and college expenses for his five children. It was, thus, unclear that the newsituation would enhance the mother or children financially.
The children would move away from the home, school and community where they had livedtheir entire lives to a place where they knew no one other than their new stepfather andstepsisters, whom they had only gotten to know on a limited basis. The mother offered onlyhearsay and speculation that the school district in Warren County was superior to the one inwhich the children had always been enrolled and where they were thriving (see Matter ofWilliams v Williams, 90 AD3d at 1344-1345; Matter of Kirshy-Stallworth v Chapman, 90 AD3d 1189, 1191[2011]). The children strongly desired to remain in their current schools and be near their friends.The father had contacted the children's school district about tuition rates for nonresidents,planned to move into their district if he obtained custody, and arranged for either himself or hisparents to drive the children to their current schools until he obtained a residence in the district.The mother testified that if her request to relocate was denied, she would not move without thechildren. Considering all of the factors, the record supports Family Court's [*3]determination that the mother failed to meet her burden of provingthat the move was in the children's best interests (see Matter of Scheffey-Hohle v Durfee, 90 AD3d 1423, 1426-1429[2011]).
Peters, P.J., Lahtinen, Spain and Kavanagh, JJ., concur. Ordered that the order is affirmed,without costs.