| Matter of Sahagun v Alix |
| 2013 NY Slip Op 04009 [107 AD3d 722] |
| June 5, 2013 |
| Appellate Division, Second Department |
| In the Matter of Gil Sahagun, Jr.,Appellant, v Catherine Alix, Respondent. |
—[*1] Elizabeth A. Vreeburg, Kew Gardens, N.Y., for respondent. Catherine A. Sheridan, P.C., Carle Place, N.Y., attorney for the child.
In related custody and visitation proceedings pursuant to Family Court Act article 6,the father appeals from an order of the Family Court, Queens County (McGrady, Ct.Atty. Ref.), dated February 21, 2012, which, after a hearing, granted that branch of themother's petition which was for leave to relocate with the party's child to New Jersey.
Ordered that the order is affirmed, without costs or disbursements.
Contrary to the contention of the father, the mother established by a preponderanceof the evidence that relocation to New Jersey was in the best interests of the parties' child(see Matter of Tropea v Tropea, 87 NY2d 727, 740-741 [1996]). " 'Whenreviewing a custodial parent's request to relocate, the court's primary focus must be onthe 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 at 739; Matter of Said vSaid, 61 AD3d 879, 881 [2009]). To the extent that a "custody determination islargely dependent upon an assessment of the credibility of the witnesses and upon thecharacter, temperament, and sincerity of the parents" (Matter of Plaza v Plaza,305 AD2d 607, 607 [2003]; seeMatter of Grossman v Grossman, 5 AD3d 486, 486-487 [2004]), "its findingmust be accorded great weight, and its grant of custody will not be disturbed unless itlacks a sound and substantial basis in the record" (Matter of Venette v Rhodes,301 AD2d 608, 608 [2003]; see Matter of Garcia v Becerra, 68 AD3d at 865).However, "[i]n relocation determinations, [this Court's] authority is as broad as that ofthe hearing court" (Matter ofJennings v Yillah-Chow, 84 AD3d 1376, 1377 [2011]) and the hearing court'sdetermination will not stand in the absence of a sound and substantial basis in the record(see Matter of McBryde vBodden, 91 AD3d 781, 782 [2012]).
"[E]conomic necessity . . . may present a particularly persuasive groundfor permitting the proposed move" (Matter of Tropea v Tropea, 87 NY2d at 739;see Matter of Wirth vWirth, 56 AD3d 787, 787 [2008]; Miller v Pipia, 297 AD2d 362, 366[2002]; Matter of Malandro v Lido, 229 AD2d 541, 542 [1996]). Here, themother demonstrated that she was not able to meet her living expenses while [*2]residing in Queens, and the father conceded that he did notregularly pay his share of the childcare expenses. The mother also demonstrated that, ifshe were permitted to relocate, her mother would assist with the childcare and that sheand the child would be able to reside, at a reduced rent, in her mother's home, locatedonly blocks from where the child would attend school. While the father's loss of weeklyweekday contact with the child is neither trivial nor insignificant (see Matter of Wisloh-Silverman vDono, 39 AD3d 555, 557 [2007]), the relocation is not a great distance and thevisitation schedule devised by the court in this case allows for the continuation of ameaningful relationship between the father and the child (see Matter of Tropea vTropea, 87 NY2d at 742; Matter of Wisloh-Silverman v Dono, 39 AD3d at557; Matter of Mooney vFerone, 34 AD3d 679 [2006]; Thomas v Thomas, 271 AD2d 726, 727[2000]). Further, the Family Court's determination was in accordance with both thechild's stated preference and the position of the attorney for the child (see Matter of Shaw v Miller,91 AD3d 879 [2012]; Matter of Fegadel v Anderson, 40 AD3d 1091 [2007]).Since the Family Court's determination had a sound and substantial basis in the record, itshould not be disturbed (seeMatter of Giraldo v Gomez, 49 AD3d 645, 645 [2008]; Matter of Coulter v Scales, 20AD3d 475 [2005]). Dillon, J.P., Angiolillo, Dickerson and Chambers, JJ., concur.