| Matter of Francis-Miller v Miller |
| 2013 NY Slip Op 07177 [111 AD3d 632] |
| November 6, 2013 |
| Appellate Division, Second Department |
| In the Matter of Natalie Francis-Miller,Petitioner, v Romeet Miller, Respondent. (Proceeding No. 1.) In the Matter ofNatalie Francis-Miller, Respondent, v Romeet Miller, Appellant. (Proceeding No.2.) |
—[*1] McCormack & Phillips, Nyack, N.Y. (Ronald G. McCormack of counsel), forrespondent. Veronica J. Young, New City, N.Y., attorney for the child.
In related child custody and family offense proceedings, the father appeals, as limitedby his brief, from so much of an order of the Family Court, Rockland County(Eisenpress, J.), dated May 29, 2013, as, after a hearing, granted that branch of themother's motion in proceeding No. 2 which was for permission to relocate with theparties' child to South Africa.
Ordered that the order is reversed insofar as appealed from, on the facts, withoutcosts or disbursements, and that branch of the mother's motion which was for permissionto relocate with the parties' child to South Africa is denied.
The parties were married in May 2005, and separated in June 2009. They are theparents of one child, a daughter, who was born in December 2008 and is now four yearsold. The mother was born and raised in South Africa, but emigrated to the United Statesin 2001, and is now a United States citizen. She and the father both currently reside inRockland County. By order entered March 10, 2010, the mother was awarded sole legaland physical custody of the child. Shortly thereafter, by order entered April 23, 2010, thefather was awarded visitation. The mother, who alleges that the marriage was marred byincidents of domestic violence, subsequently obtained an order of protection against thefather based on an incident in which he threatened to kill himself in front of her and thechild. In September 2011, the mother filed a petition in the Family Court, RocklandCounty, alleging that the father had violated the order of protection. The violationpetition [*2]was based on a heated argument whichallegedly occurred during an exchange of the child for visitation.
While the mother's violation petition was pending, she moved to modify the existingcustody and visitation orders by granting her permission to relocate with the child toSouth Africa. At an ensuing hearing, the mother testified regarding arguments andincidents of domestic violence that had occurred primarily before the parties' 2009separation. She also described several incidents, both before and after the separation, inwhich the father had threatened to kill himself, and engaged in self-injurious acts,including hitting and choking himself. At the time of the hearing, the mother had beenemployed by a pharmaceutical company as a payroll analyst for more than six years. Withrespect to economic opportunities in South Africa, the mother testified that her plan, ifpermitted to relocate, was to work in her parents' business. Although she admitted thatshe would earn less than her current salary if she worked in the family business, shetestified that her living expenses would be reduced because she could live rent-free in herparents' home, and her mother could assist with child care. The mother further testifiedthat she had an extended, close-knit family in South Africa, and she and the child wouldeach be able to have their own room in her parents' home. The mother acknowledged thatshe had been sexually abused as a child in South Africa by a maternal uncle, but claimedthat this uncle had been "cut off" from the family.
The father denied that he had ever hit the mother, but admitted that he had threatenedto commit suicide in the mother's presence on several occasions in 2009, and that he hadonce choked himself in front of her to the point where he lost consciousness. He hadtaken the advice of the court-appointed psychologist who evaluated the parties, andcommenced treatment about four months earlier. The father opposed relocation, statingthat he loved the child with all his heart, and expressing his belief that it was in the bestinterests of the child to have both parents available in her life. He also maintained that hewanted to be an involved father, and that Skype communications, email messages, andphone calls "with oceans in between us" were not a substitute for his current relationshipwith the child, who lived only a quarter of a mile away from him.
The court-appointed psychologist who evaluated the parties found that the motherhad excellent parental capacity, and that the child was more emotionally attached to herthan to the father. Discussing why the mother desired to relocate, he observed that "[s]heis a single mother who is very alone in the United States, with all her relatives residing inSouth Africa. She feels isolated and has made the psychological and emotional decisionto relocate and remove [the child] from the father so she can return to South Africa." Inthe psychologist's view, the main reason the mother felt so alone was that she had givenup on the idea of making friends and building a support system in the United States. Inthe psychologist's opinion, the mother's feelings toward the father were ambivalent,because despite past incidents of domestic violence, she continued to rely on him at timesto fulfil her emotional and sexual needs. According to the psychologist, the father wascurrently emotionally and mentally stable, and "[h]is parenting attitudes suggestrelatively adequate or normal parental capacity with a low risk of neglectful or abusivebehaviors." The psychologist recommended that the mother's relocation request bedenied, concluding that the child needed a relationship with her father and her father'sfamily, and that a good relationship could not be developed and maintained throughSkype communications.
The Family Court granted the mother's motion for permission to relocate, concludingthat the proposed relocation was in the best interests of the child. The court observed thatthe evidence painted a portrait of the mother as a woman who was isolated in this countrywith no family and few friends, and agreed with the psychologist that the mother'sisolation was self-created. However, the court found that the psychologist's report andrecommendation should be given little weight, primarily because the psychologist haddiscredited the mother's claim that she feared the father by pointing to the fact that afterthe separation, the mother invited the father to her home on different occasions, andinitiated sexual encounters with him. The court credited the mother's allegations ofdomestic violence, and her explanation that she invited the father to her home to facilitatevisitation with the child in a family setting, and initiated only one sexual encounter withhim. The court further found that the mother was struggling financially and emotionallyin the United States, and would be better off if permitted to return to South Africa, whereshe could work [*3]in the family business and liverent-free. The court directed the mother to pay for the father to have four yearly visitswith the child, two in South Africa, and two in the United States. We reverse, and denythat branch of the mother's motion which was for permission to relocate.
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 Matter of Hirtz vHirtz, 108 AD3d 712, 713 [2013]; Rubio v Rubio, 71 AD3d 862, 863 [2010]; Matter of Martino v Ramos, 64AD3d 657 [2009]). In determining whether relocation is appropriate, the court mustconsider a number of factors, which include "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 727, 740-741 [1996]). In assessing these factors, "no single factorshould be treated as dispositive or given such disproportionate weight as to predeterminethe outcome" (id. at 738). However, "the impact of the move on the relationshipbetween the child and the noncustodial parent will remain a central concern" (id.at 739; see Matter of Hirtz v Hirtz, 108 AD3d at 713). "In the end, it is forthe court to determine, based on all of the proof, whether it has been established by apreponderance of the evidence that a proposed relocation would serve the child's bestinterests" (Matter of Tropea v Tropea, 87 NY2d at 741). In relocationproceedings, this Court's authority is as broad as that of the hearing court, and arelocation determination will not be permitted to stand unless it is supported by a soundand substantial basis in the record (see Matter of Hirtz v Hirtz, 108 AD3d at713-714; Matter of McBryde vBodden, 91 AD3d 781, 782 [2012]).
Weighing the relevant factors here, we conclude that the Family Court'sdetermination that the proposed relocation was in the child's best interests is notsupported by a sound and substantial basis in the record. Although the Family Court wasproperly concerned about the father's history of domestic violence, the record is devoidof evidence that he has ever harmed the child or directed his anger toward her, and manyof the incidents described by the mother involved the father's suicidal ideation andinfliction of harm upon himself. Significantly, the court-appointed psychologist foundthat the father was currently emotionally and mentally stable, and at low risk ofneglectful or abusive behavior toward the child. Moreover, the record shows that themother sought permission to relocate primarily because she feels lonely and isolated inthe United States, and not to escape domestic violence (cf. Matter of Eddington vMcCabe, 98 AD3d 613, 615 [2012]). The record also establishes that the fatherconsistently exercises his right to visit the child twice a week, and that he desires tospend more time with her (see Matter of McBryde v Bodden, 91 AD3d at 782).Further, there is no economic necessity for the proposed relocation because the motherhas been steadily employed as a payroll analyst for more than six years. Although themother testified that the proposed relocation would offer her economic benefit becauseshe can live rent-free in her parents' home and her mother can assist her with child care,these benefits do not outweigh the drastic reduction in the quantity and quality of thechild's contacts with the father which would ensue if the child relocated to a country sodistant from the United States that, according to the parties, it requires a 24-hour-longflight to reach (see id. at 782). While we are mindful that the attorney for thechild supports relocation and that her position is entitled to some weight, it is notdispositive (see Matter ofJackson v Coleman, 94 AD3d 762, 763 [2012]; Matter of Haimovici vHaimovici, 73 AD3d 1058 [2010]). Under these circumstances of this case, theproposed relocation is not in the best interests of the child (see Matter of McBryde vBodden, 91 AD3d at 782; Rubio v Rubio, 71 AD3d at 863-864; Matter of Giraldo v Gomez, 49AD3d 645, 646 [2008]; Matter of Willis-Marsh v Wilkerson, 22 AD3d 977,978-979 [2005]; Matter ofHerman v Villafane, 9 AD3d 525, 527-528 [2004]). Accordingly, that branch ofthe mother's motion which was for permission to relocate with the child should havebeen denied. Eng, P.J., Dickerson, Chambers and Hall, JJ., concur.