| Matter of Hirtz v Hirtz |
| 2013 NY Slip Op 05457 [108 AD3d 712] |
| July 24, 2013 |
| Appellate Division, Second Department |
| In the Matter of Anthony Hirtz,Appellant, v Cameron Hirtz, Respondent. |
—[*1] Levinson, Reineke & Ornstein, P.C., Central Valley, N.Y. (Justin E. Kimple ofcounsel), for respondent. Susan Argento Ferlauto, Pleasantville, N.Y., attorney for the children.
In a child custody proceeding pursuant to Family Court Act article 6, the fatherappeals from an order of the Family Court, Orange County (Currier Woods, J.), datedAugust 9, 2012, which, after a hearing, denied his petition to relocate to North Carolinawith the parties' two children, modified a prior order dated July 20, 2009, entered uponthe parties' consent, awarding them joint legal custody of the children with primaryphysical custody to him, so as to award the mother sole legal and physical custody of thechildren with visitation to him, and set forth a custodial plan that would take effect in theevent that the parties decided, in the future, to reside in the same state.
Ordered that the order dated August 9, 2012, is modified, on the law, (1) by deletingthe provision thereof modifying the order dated July 20, 2009, so as to award the mothersole legal custody of the children, and (2) by deleting the provision thereof setting forth acustodial plan that would take effect in the event that the parties decided, in the future, toreside in the same state; as so modified, the order is affirmed, without costs ordisbursements.
In July 2009, the parties entered into a consent order pursuant to which they agreedto joint legal custody of their two children, with primary physical custody to the father.The parties were divorced in December 2010, and the consent order was incorporated butnot merged into the judgment of divorce. In 2012, the father, a pediatrician employed bythe United States military, received military orders reassigning him from West Point inNew York, to Fort Bragg in North Carolina, and filed the instant petition for permissionto relocate to North Carolina with the parties' two children. Following a hearing, theFamily Court denied the father's petition. At the same time, the court modified theparties' prior consent order so as to award the mother sole legal and physical custody ofthe children, with visitation to the father, and also set forth a custodial plan that wouldtake effect in the event that the parties decided, in the future, to reside in the same state.
"When reviewing a custodial parent's request to relocate, the court's primary focus[*2]must be on the best interests of the child" (Matter of Giraldo v Gomez, 49AD3d 645, 645 [2008]; see Matter of Tropea v Tropea, 87 NY2d 727, 739[1996]; Matter of Hamed vHamed, 88 AD3d 791, 791 [2011]; Matter of Said v Said, 61 AD3d 879, 881 [2009])."Relocation may be allowed if the custodial parent demonstrates, by a preponderance ofthe evidence, that the proposed move is in the child's best interests" (Matter of Steadman v Roumer,81 AD3d 653, 654 [2011]; see Piccinini v Piccinini, 103 AD3d 868, 869 [2013]).When evaluating whether a proposed move is in the child's best interest, "the factors tobe considered include, but are not limited to, each parent's reasons for seeking oropposing the move, the quality of the relationships between the children and each parent,the impact of the move on the quantity and quality of the children's future contact withthe noncustodial parent, the degree to which the lives of the custodial parent and thechildren may be enhanced economically, emotionally, and educationally by the move,and the feasibility of preserving the relationship between the noncustodial parent and thechildren through suitable visitation arrangements" (Matter of Said v Said, 61AD3d at 881; see Matter of Tropea v Tropea, 87 NY2d at 740-741; Matter of Retamozzo v Moyer,91 AD3d 957, 957-958 [2012]; Matter of Steadman v Roumer, 81 AD3d at654). Although a multitude of factors may be considered, " 'the impact of the move onthe relationship between the child and the noncustodial parent will remain a centralconcern' " (Matter of Martino vRamos, 64 AD3d 657, 657-658 [2009], quoting Matter of Tropea vTropea, 87 NY2d at 739). In relocation determinations, this Court's authority is asbroad as that of the hearing court (see Matter of Jennings v Yillah-Chow, 84 AD3d 1376,1377 [2011]). Thus, a relocation determination will not be permitted to stand unless it issupported by a sound and substantial basis in the record (see Matter of Clarke vBoertlein, 82 AD3d 976, 977 [2011]).
Here, the record contains a sound and substantial basis for the Family Court's denialof the father's relocation petition (see Matter of Tropea v Tropea, 87 NY2d 727[1996]; Matter of Steadman v Roumer, 81 AD3d at 654). Although movingwould ensure that the children could continue their education at a school run by theDepartment of Defense, by remaining in New York with their mother, a civilianemployee at West Point, the children could maintain the relationships they had formedwith their friends, doctors, therapists, and church community. Moreover, although therewas a possibility that they would not be able to continue at the Department of Defenseschools, they could continue to participate in many of the extracurricular activities andafter-school programs offered at West Point. The mother has been intimately involved inthe children's lives since birth, and was their exclusive caregiver during the father's threeoverseas deployments. The record supports the Family Court's conclusion that theproposed relocation would have a negative impact on the children's relationship with themother (see Matter of Said v Said, 61 AD3d at 881). Since the father is obligatedto move, the denial of his petition to relocate with the children will inevitably have animpact on his ability to spend time with them. Nevertheless, the liberal visitationschedule, including extended visits during the summer and school vacations, along withthe mother's representation that she will make sure that the children have as much accessto the father as possible, which the Family Court credited, will allow for the continuationof a meaningful relationship between the children and the father (see Matter ofJennings v Yillah-Chow, 84 AD3d at 1377). In addition, the position of the attorneyfor the children is that relocation is not in the children's best interests, and that position,since it is not contradicted by the record, is entitled to some weight (see Matter ofHamed v Hamed, 88 AD3d at 792). Accordingly, since the father failed todemonstrate by a preponderance of the evidence that it was in the children's best intereststo relocate with him, his petition was properly denied (see Matter of Steadman vRoumer, 81 AD3d at 654).
As is undisputed, a denial of the father's relocation petition, under the circumstances,necessitated a modification of the prior consent order, which awarded the parties jointlegal custody with primary physical custody to the father. Indeed, the question of whichparty should have primary physical custody was, considering the father's obligatorymove, inextricably tied to the relocation issue and the parties were clearly on notice thatprimary physical custody would be awarded to the mother should the father's relocationpetition be denied. However, the mother never requested a modification of the joint legalcustody arrangement and the Family Court never indicated that legal custody was atissue. As the father had no notice that legal custody was at issue, the Family Court shouldnot have modified the prior consent order, entered in July 2009, so as to award themother sole legal custody (seeMatter of Joseph A. v Jaimy B., 81 AD3d 1219, 1220 [2011]; Matter of Terry I. v BarbaraH., 69 AD3d 1146, 1149 [2010]; Matter of Adams v Bracci, 61 AD3d 1065, 1067 [2009];see also Matter [*3]of Grant v Terry, 104 AD3d 854, 854 [2013]; Matter of Alexis AA. [AngelaYY.—Bradley AA.], 93 AD3d 1090, 1091 [2012]; cf. Matter of Mahoney vRegan, 100 AD3d 1237, 1237-1238 [2012]; Matter of Kowatch v Johnson, 68 AD3d 1493, 1495[2009]).
Similarly, because the parties only sought to resolve the custodial issues broughtabout by the father's obligatory move to North Carolina, and did not raise any issuesregarding an appropriate custodial plan in the event that either party made a future move,it was improper for the Family Court to set forth a custodial plan that would take effect inthe event that the parties decide, in the future, to reside in the same state. Of course,should there be a countervailing change of circumstance in the future, either party may, atthat point, petition to modify the current custodial order (see generally Friederwitzerv Friederwitzer, 55 NY2d 89 [1982]). Eng, P.J., Rivera, Hall and Lott, JJ., concur.