| Matter of Shirley v Shirley |
| 2012 NY Slip Op 08837 [101 AD3d 1391] |
| December 20, 2012 |
| Appellate Division, Third Department |
| In the Matter of Britney Shirley, Respondent, v Todd Shirley,Appellant. |
—[*1] Donna C. Chin, Ithaca, for respondent. Mari K. Townsend, Ithaca, attorney for the children.
Egan Jr., J. Appeal from an order of the Supreme Court (Ames, J.), entered July 27, 2011 inTompkins County, which, among other things, granted petitioner's application, in a proceedingpursuant to Family Ct Act article 6, to modify a prior order of custody.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the divorcedparents of three boys, two of whom are twins and all of whom were born in 2007. In August2009, and upon the parties' stipulation, the mother was awarded sole legal and primary physicalcustody of the children, and the father was granted unspecified periods of supervised visitation.Additionally, Supreme Court ordered that the father undergo a substance abuse evaluation andcomplete both a domestic violence and an anger management program and issued a stay-awayorder of protection in favor of the mother, which remains in effect until 2014.
Thereafter, in November 2010, the mother commenced this proceeding seeking permission torelocate with the children to Yuma, Arizona, where her fiancÉ was living and working.Following a fact-finding hearing, Supreme Court granted the mother's application, finding thatthe proposed move was in the children's best interests. In conjunction therewith, [*2]the father was granted specified periods of supervised visitationthroughout the year.[FN1] This appeal by the father ensued.[FN2]
We affirm. As the parent seeking to relocate, the mother bore the burden of establishing by apreponderance of the credible evidence that the proposed move was in the children's bestinterests (see Matter of Scheffey-Hohlev Durfee, 90 AD3d 1423, 1425 [2011], lv denied 19 NY3d 876 [2012]; Matter of Sniffen v Weygant, 81 AD3d1054, 1055 [2011], appeals dismissed 16 NY3d 886 [2011], 17 NY3d 884 [2011]).Such a showing, in turn, requires a court to consider a number of factors, including each parent's"motivation for seeking or opposing the move, the impact of the move on the children'srelationship with the noncustodial parent, the feasibility of suitable visitation and the degree towhich the move will enhance the children's lives" (Matter of Pizzo v Pizzo, 94 AD3d 1351, 1352 [2012]; seeMatter of Tropea v Tropea, 87 NY2d 727, 740-741 [1996]; Matter of Smith v Hoover, 24 AD3d1096, 1096-1097 [2005]). As Supreme Court was in the best position to evaluate the"testimony, character and sincerity of all the parties involved" (Eschbach v Eschbach, 56NY2d 167, 173 [1982]), its credibility determinations are entitled to deference and its decision, ifsupported by a sound and substantial basis in the record as a whole, will not be disturbed (see Matter of Weber v Weber, 100AD3d 1244, 1245-1246 [2012]; Matter of Pizzo v Pizzo, 94 AD3d at 1352).
Admittedly, the mother's primary motivation for the move was to join her fiancÉ, but itis readily apparent from the record that the children would benefit from the economic stabilityand security that such move would bring. At the time of the hearing, the mother was receivingpublic assistance and routinely had to turn to her relatives, friends and fiancÉ for additionalfunds in order to make ends meet. Although the mother sometimes babysat for additional pocketmoney, the children's needs and schedules effectively precluded outside employment.[FN3] The mother's fiancÉ, on the other hand, was gainfully employed as an airframes mechanicfor a well-established civilian contractor on the same military base where he previously wasstationed. The fiancÉ testified that he had the financial wherewithal to support the motherand the children, all of whom would be covered under his health insurance once he and themother married, and that this arrangement would allow the mother to remain at home andcontinue to work with the children—at least until all of them were in school full time.
As to the impact upon the father's relationship with the children, there is no question that hewould see the children less frequently. However, both the mother and the fiancÉ hadextended family in this state and indicated that they would return to the area in order to facilitatethe father's visitations with the children. Although the mother wanted the father's visits to remainsupervised, she also recognized that such visits necessarily would need to be for longer periods of[*3]time. The mother also expressed a willingness to allow thefather to visit the children in Arizona, in addition to regular telephone and/or online contact.
While it is true, as the father points out, that the children's educational opportunities inArizona essentially mirrored those available in New York and that the move indeed woulddistance the children from their grandparents and other members of their extended families, wenonetheless are persuaded—based upon our review of the record as a whole and havinggiven due consideration to all of the relevant factors, including the feasibility of the fathermaintaining meaningful contact with the children—that relocation indeed is in thechildren's best interests (see Matter ofSara ZZ. v Matthew A., 77 AD3d 1059, 1061 [2010]; Matter of Smith v Hoover,24 AD3d at 1097). Accordingly, we discern no basis upon which to disturb Supreme Court'ssound determination in this regard.
As to the father's various evidentiary issues, we find them to be lacking in merit. It is wellsettled that a court may take judicial notice of its own prior proceedings and orders (see Matter of Anjoulic J., 18 AD3d984, 986 [2005]) and is vested with "broad discretion in determining the parameters forproof to be accepted at the hearing" (Matter of Scott LL. v Rachel MM., 98 AD3d 1197, 1197 [2012][internal quotation marks and citation omitted]). Moreover, although we are of the view that thelimited proof received by Supreme Court with regard to events that predated the prior custodyorder was properly considered in the context of the best interests analysis (cf. Matter of Bakerv Baker, 283 AD2d 730, 731 [2001], lv denied 96 NY2d 720 [2001]), any error inthis regard may be deemed harmless in light of the remaining proof adduced at the hearing (see generally Matter of Aaron W. vShannon W., 96 AD3d 960, 961 [2012]; Matter of Anjoulic J., 18 AD3d at 987).
Mercure, J.P., Rose, Kavanagh and Stein, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: The requirement that the father'svisits be supervised remained in place because the father failed to complete the services andprograms previously ordered by Supreme Court.
Footnote 2: The father's application for astay pending appeal was denied by a Justice of this Court.
Footnote 3: All of the children hadindividualized education plans and previously had received various supportive services, whichthe mother coordinated, and it was anticipated that one of the twins would need speech andphysical therapy going forward.