| Matter of Tracy A.G. v Undine J. |
| 2013 NY Slip Op 02751 [105 AD3d 1046] |
| April 24, 2013 |
| Appellate Division, Second Department |
| In the Matter of Tracy A.G., Appellant, v Undine J.et al., Respondents. |
—[*1] Cheryl Charles Duval, Brooklyn, N.Y., for respondent Christopher C. Karen P. Simmons, Brooklyn, N.Y. (Barbara H. Dildine and Janet Neustaetter ofcounsel), attorney for the children.
In a proceeding pursuant to Family Court Act article 6, the mother appeals from anorder of the Family Court, Kings County (Joseph, J.), dated March 22, 2012, which, aftera hearing, denied her petition for permission to relocate with the subject children toFlorida.
Ordered that the order is reversed, on the law and the facts, without costs ordisbursements, the mother's petition to relocate with the subject children to Florida isgranted, and the matter is remitted to the Family Court, Kings County, for a hearing toestablish an appropriate postrelocation visitation schedule for the father and for thepaternal grandmother, in accordance herewith.
Although "the hearing court has an advantage in being able to observe the demeanorand assess the credibility of witnesses, we would be seriously remiss if, simply indeference to the finding of [the hearing court], we allowed a relocation determination tostand where it lacks a sound and substantial basis in the record" (Matter of Clarke v Boertlein,82 AD3d 976, 977 [2011] [internal quotation marks and citation omitted]).Moreover, in relocation determinations, our authority is as broad as that of the hearingcourt (see Matter of Eddingtonv McCabe, 98 AD3d 613, 615 [2012]; Matter of Jennings v Yillah-Chow, 84 AD3d 1376, 1377[2011]; Matter of Clarke v Boertlein, 82 AD3d at 977).
After weighing the appropriate factors set forth in Matter of Tropea v Tropea(87 NY2d 727, 739-741 [1996]), we find that the mother established by a preponderanceof the evidence that the children's best interests would be served by permitting therelocation (see Matter ofWisloh-Silverman v Dono, 39 AD3d 555, 556 [2007]).
The mother demonstrated that she could not meet the family's living expenses inNew York and that the father did not make regular child support payments (see Matter of Harrsch v [*2]Jesser, 74 AD3d 811, 812 [2010]). She alsodemonstrated that, if permitted to relocate, she would accept an offer of employment inher field of experience, and would receive financial assistance, including housing and acar, from extended family members (id. at 812; Matter of Hamed v Hamed, 88AD3d 791, 791-792 [2011]). The desires of the children, while properly considered,are not determinative (see Matter of Harrsch v Jesser, 74 AD3d at 812; Matter of Gonzalez vGonzalez, 15 AD3d 481, 483 [2005]; Matter of Coulter v Scales, 20 AD3d 475, 476 [2005]).
The contention that the mother would not honor the visitation schedule after themove is not supported by the record (see Matter of Wisloh-Silverman v Dono, 39AD3d at 557).
Although the mother's relocation will inevitably have an impact upon the father'sability to spend time with the children, a liberal visitation schedule, including extendedvisits during summer and school vacations, will allow for the continuation of ameaningful relationship between the father and the children (see Matter of Tropea vTropea, 87 NY2d at 742; Matter of Jennings v Yillah-Chow, 84 AD3d at1377). Likewise, an appropriate visitation schedule will allow the children to spendmeaningful time with their paternal grandmother, with whom they have a goodrelationship (see Matter of Clarke v Boertlein, 82 AD3d at 978). Mastro, J.P.,Rivera, Sgroi and Cohen, JJ., concur.