| Matter of Davis v Ogden |
| 2013 NY Slip Op 05626 [109 AD3d 539] |
| August 14, 2013 |
| Appellate Division, Second Department |
| In the Matter of Cynthia M. Davis,Respondent, v Derrick J. Ogden, Appellant. |
—[*1] Jeanette Madera, Hyde Park, N.Y., for respondent. Theoni Stamos-Salotto, Hopewell Junction, N.Y., attorney for the children.
In related proceedings pursuant to Family Court Act article 6, the father appeals froman order of the Family Court, Dutchess County (Posner, J.), entered July 31, 2012,which, after a hearing, granted the mother's petition to relocate with the parties' twochildren to Florida.
Ordered that the order is affirmed, without costs or disbursements.
A parent seeking to relocate with a child bears the burden of establishing by apreponderance of the evidence that the proposed move would be in the child's bestinterests (see Bjornson vBjornson, 38 AD3d 816 [2007]). In determining whether relocation isappropriate, the court must consider a number of factors, including the child'srelationship with each parent, the effect of the move on contact with the noncustodialparent, and each parent's motives for seeking or opposing the move (see Matter ofTropea v Tropea, 87 NY2d 727 [1996]). In assessing these factors, "no single factorshould be treated as dispositive or given such disproportionate weight as to predeterminethe outcome" (id. at 738; see Matter of Maraj v Gordon, 102 AD3d 698, 698[2013]). "In the end, it is for the court to determine, based on all of the proof, whether ithas been established by a preponderance of the evidence that a proposed relocationwould serve the child's best interests" (Matter of Tropea v Tropea, 87 NY2d at741).
Contrary to the father's contention, the record contains a sound and substantial basisfor the Family Court's determination that the mother's relocation to Florida would be inthe best interests of the parties' children. The Family Court found credible the mother'stestimony at trial that, if she were permitted to relocate with the children to Florida, thechildren's quality of life would be significantly improved on a day-to-day basis becausethe cost of living would be less than it is in New York, where she was strugglingfinancially, and the mother would have several close family members in the vicinity ofher new home to offer her support. Significantly, it was undisputed that the mother wasthe children's primary caregiver, and that the father was minimally involved in thechildren's lives. In the previous year, the father had missed several visits, and had seenthe children approximately 10 times for a total of 30 hours. He did not attend any of thechildren's extracurricular activities, communicate with their teachers, or schedule orattend their medical [*2]appointments, and he rarelyinitiated phone contact (seeMatter of Eddington v McCabe, 98 AD3d 613 [2012]; cf. Matter of Perau v Ross, 106AD3d 1013 [2013]; Matterof Retamozzo v Moyer, 91 AD3d 957 [2012]; Matter of Raffa v Raffa, 96AD3d 855 [2012]). Moreover, the position of the attorney for the children was infavor of the relocation (seeMatter of Caravella v Toale, 78 AD3d 828, 828 [2010]). Accordingly, under thetotality of the circumstances, we find that there is no basis to disturb the Family Court'sdetermination (see Matter ofGiraldo v Gomez, 49 AD3d 645, 645 [2008]; see also Matter of Tracy A.G. vUndine J., 105 AD3d 1046, 1047 [2013]). Angiolillo, J.P., Chambers, Romanand Hinds-Radix, JJ., concur.