| Matter of Perau v Ross |
| 2013 NY Slip Op 03681 [106 AD3d 1013] |
| May 22, 2013 |
| Appellate Division, Second Department |
| In the Matter of Wendy Perau,Appellant, v Thomas Ross, Respondent. |
—[*1] Caruso, Caruso & Branda, P.C., Brooklyn, N.Y. (RoseAnn C. Branda and Grace M.Borrino of counsel), for respondent. Karen P. Simmons, Brooklyn, N.Y. (Melanie T. West and Barbara H. Dildine ofcounsel), attorney for the children.
In a child custody proceeding pursuant to Family Court Act article 6, the motherappeals, as limited by her brief, from so much of an order of the Family Court, KingsCounty (Katz, J.), dated January 20, 2012, as, after a hearing, and upon awarding her solecustody of the parties' two children, denied that branch of her petition which was forleave to relocate to Florida with the parties' two children.
Ordered that the order is affirmed insofar as appealed from, without costs ordisbursements.
The parties, who were never married, have two children. The mother petitioned, interalia, for leave to relocate with the parties' two children to Florida, where her fiancÉresides. The father opposed the mother's request for leave to relocate with the children.After a hearing in which it was established, inter alia, that the father had frequent andconsistent visitation and a close bond with the children, the Family Court denied themother's request for leave to relocate.
" 'When reviewing a custodial parent's request to relocate, the court's primary focusmust be on the best interests of the child' " (Matter of Garcia v Becerra, 68 AD3d 864, 865 [2009],quoting Matter of Giraldo vGomez, 49 AD3d 645, 645 [2008]; see Matter of Tropea v Tropea, 87NY2d 727, 739 [1996]). In relocation cases, this Court's authority is as broad as that ofthe hearing court (see Matter ofJennings v Yillah-Chow, 84 AD3d 1376, 1377 [2011]), and the hearing court'sdetermination will not be affirmed if it lacks a sound and substantial basis in the record(see Matter of McBryde vBodden, 91 AD3d 781 [2012]).
Here, the mother bore the burden of demonstrating, by a preponderance of theevidence, that her proposed move to Florida was in the children's best interests (see Matter of Karen [*2]H. v Maurice G., 101 AD3d 1005 [2012]). Whenevaluating whether a proposed move would serve a child's best interests, the factors to beconsidered include, but are certainly not limited to, "each parent's reasons for seeking oropposing 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 thechild's future contact with the noncustodial parent, the degree to which the custodialparent's and child's life may be enhanced economically, emotionally and educationally bythe move, and the feasibility of preserving the relationship between the noncustodialparent and child through suitable visitation arrangements" (Matter of Tropea vTropea, 87 NY2d at 740-741). However, "the impact of the move on the relationshipbetween the child and the noncustodial parent will remain a central concern" (id.at 739).
Upon weighing the appropriate factors, the Family Court properly determined thatthe mother did not meet her burden of proving by a preponderance of the evidence thatthe move to Florida was in the children's best interests. The mother failed to establish thatthe move would not have a negative impact on the quality of the relationship between thechildren and the father, that the children's lives would be enhanced economically,emotionally, or educationally by the move, or that the quality of the relationship betweenthe children and the father would be preserved by less frequent, extended periods ofvisitation. Accordingly, the Family Court's determination has a sound and substantialbasis in the record, and will not be disturbed by this Court. Skelos, J.P., Hall, Lott andHinds-Radix, JJ., concur.