| Matter of Caruso v Cruz |
| 2014 NY Slip Op 00993 [114 AD3d 769] |
| February 13, 2014 |
| Appellate Division, Second Department |
| In the Matter of Daniel Caruso,Respondent, v Yvette Cruz, Appellant. Andrew Caruso et al., NonpartyAppellants. |
—[*1] Andrew W. Szczesniak, White Plains, N.Y., attorney for the children, nonpartyappellants Andrew Caruso and Alexa Caruso. Barbara J. Strauss, Goshen, N.Y., for petitioner-respondent.
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, OrangeCounty (Currier Woods, J.), dated March 6, 2012, as, after a hearing, denied herapplication for leave to relocate with the parties' children and granted the father's petitionto modify an order of the Family Court, Rockland County, dated April 19, 2007, so as toaward him sole legal and physical custody of the children.
Ordered that the order dated March 6, 2012, is reversed insofar as appealed from, onthe facts and in the exercise of discretion, without costs or disbursements, the mother'sapplication for leave to relocate with the subject children is granted, the father's petitionto modify the order dated April 19, 2007, so as to award him sole legal and physicalcustody of the children is denied, and the matter is remitted to the Family Court, OrangeCounty, for further proceedings consistent herewith, to establish an appropriate visitationschedule for the father in light of the mother's relocation and, thereafter, to issue apermanent visitation order; and it is further,
Ordered that pending further order of the Family Court, Orange County, the fathershall have unsupervised visitation with the children alternating weekends from Friday at7:00 p.m. through Sunday at 7:00 p.m., and shall have the right to exercise mid-weekvisits every Tuesday from 4:30 p.m. to 7:30 p.m., with the mother transporting thechildren no less than half the geographic distance to the father's residence for drop-offand pick-up, or as the parties may otherwise agree.
The mother and the father are the parents of 9-year-old twins (hereinafter togetherthe subject children) and a 20-year-old son. The parties were divorced by an amendedjudgment entered in the Supreme Court, Rockland County, on October 5, 2004, whichincorporated but did not merge with a stipulation of settlement between the parties(hereinafter the stipulation). The stipulation provided, in relevant part, for the parties toshare joint legal custody of the subject children, with the [*2]mother having physical custody and the father havingliberal visitation. The same provision included the parties' agreement that neither partywould move "beyond a one hundred mile radius of one another so as not to disruptvisitation with the [subject] children, without prior written consent from the other party."
In 2006 the parties commenced cross custody proceedings in the Family Court,Rockland County. The proceedings were resolved by an order of the Family Court,Rockland County, dated April 19, 2007 (hereinafter the 2007 order), which, inter alia,awarded the parties joint legal custody of the subject children, with the mother havingphysical custody, and set forth a comprehensive liberal visitation schedule for the father,which included alternate weekends, Tuesday and Thursday afternoons, and sharedholidays and summers.
The father commenced this proceeding in the Family Court, Orange County, by apetition dated July 8, 2011, which alleged that he had learned that the mother was in theprocess of moving with the subject children to New Rochelle, which was 57 miles away.The father requested modification of the 2007 order so as to award him sole legal andphysical custody of the subject children. The father alleged that it was not in the subjectchildren's best interests to move to New Rochelle, because his visitation with them wouldbe disrupted, and that their best interests would be served by awarding him sole legal andphysical custody. The mother opposed the father's petition, and requested leave torelocate with the subject children to New Rochelle. She contended that the existingcustody arrangement should be retained, and that it was in the subject children's bestinterests to relocate with her to New Rochelle.
After a hearing at which the parties and other witnesses testified at length, the FamilyCourt denied the mother's application for leave to relocate with the subject children toNew Rochelle, and granted the father's petition to modify the 2007 order so as to awardhim sole legal and physical custody of the subject children.
A parent seeking leave 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 ofFrancis-Miller v Miller, 111 AD3d 632, 635 [2013]; Matter of Hirtz v Hirtz, 108AD3d 712, 713 [2013];Rubio v Rubio, 71 AD3d 862, 863 [2010]). In determining whether relocation isappropriate, the court must consider a number of factors, which include "each parent'sreasons for seeking or opposing the move, the quality of the relationships between thechild and the custodial and noncustodial parents, the impact of the move on the quantityand quality of the child's future contact with the noncustodial parent, the degree to whichthe custodial parent's and child's life may be enhanced economically, emotionally andeducationally by the move, and the feasibility of preserving the relationship between thenoncustodial parent and child[ren] through suitable visitation arrangements" (Matterof Tropea v Tropea, 87 NY2d 727, 740-741 [1996]). In assessing these factors, "nosingle factor should be treated as dispositive or given such disproportionate weight as topredetermine the outcome" (id. at 738). However, "the impact of the move on therelationship between the child and the noncustodial parent will remain a central concern"(id. at 739; see Matter of Francis-Miller v Miller, 111 AD3d at 635;Matter of Hirtz v Hirtz, 108 AD3d at 713).
"In the end, it is for the court to determine, based on all of the proof, whether it hasbeen established by a preponderance of the evidence that a proposed relocation wouldserve the child's best interests" (Matter of Tropea v Tropea, 87 NY2d at 741). Inrelocation proceedings, this Court's authority is as broad as that of the hearing court, anda relocation determination will not be permitted to stand unless it is supported by a soundand substantial basis in the record (see Matter of Francis-Miller v Miller, 111AD3d at 635; Matter of Hirtz v Hirtz, 108 AD3d at 713-714; Matter of McBryde v Bodden,91 AD3d 781, 782 [2012]).
Here, the Family Court's determination that the subject children's best interests wouldnot be served by the relocation to New Rochelle is not supported by a sound andsubstantial basis in the record. Although the Family Court was properly concerned aboutthe impact that the move would have on the father's relationship with the subjectchildren, the record demonstrated that the relocation to New Rochelle would not "deprivethe father of regular and meaningful access" to the [*3]children (Matter of Browner v Kenward, 213 AD2d400, 401 [1995], affd 87 NY2d 727 [1996]; see Matter of Cassidy vKapur, 164 AD2d 513, 516 [1991]; Matter of Schouten v Schouten, 155AD2d 461, 462 [1989]). Furthermore, although the relocation may not have been aneconomic necessity, it was necessary for the mother to obtain a new residence after shewas unable to negotiate an acceptable renewal of her lease at her previous residence, andher considerations as to where to move were valid and not based on animus. Under thecircumstances of this case, the mother's request for leave to move with the children toNew Rochelle should not have been denied (see generally Matter of Tropea vTropea, 87 NY2d 727 [1996]).
We further conclude that the Family Court should have denied the father's petitionfor sole legal and physical custody of the subject children. The essential consideration inany custody dispute is the best interests of the children (see Eschbach vEschbach, 56 NY2d 167, 171 [1982]). In determining the best interests of thechildren, the court must evaluate the totality of the circumstances (see id.; Matter of James A.-S. v CassandraA.-S., 107 AD3d 703, 706 [2013]; Nicholas T. v Christine T., 42 AD3d 526, 527 [2007]; Matter of Berrouet v Greaves,35 AD3d 460, 461 [2006]). This Court's authority in custody determinations is asbroad as that of the hearing court (see Matter of Louise E.S. v W. Stephen S., 64NY2d 946, 947 [1985]), and while we are mindful that the hearing court has anadvantage in being able to observe the demeanor and assess the credibility of witnesses,we "would be seriously remiss if, simply in deference to the finding of a Trial Judge," weallowed a custody determination to stand where it lacks a sound and substantial basis inthe record (Matter of Gloria S. v Richard B., 80 AD2d 72, 76 [1981]; seeMatter of James A.-S. v Cassandra A.-S., 107 AD3d at 706; Matter of Moran v Cortez, 85AD3d 795, 796 [2011];Matter of Marrero v Centeno, 71 AD3d 771 [2010]; Matter of Larkin v White, 64AD3d 707, 708-709 [2009]).
Here, the Family Court's award of sole legal and physical custody of the subjectchildren to the father lacked a sound and substantial basis in the record. In awarding thefather custody, the court gave undue weight to particular instances of conflict betweenthe parties, and to the mother's failure to consult with the father before determining tomove with the subject children to New Rochelle. Furthermore, the court failed to givesufficient weight to the fact that the mother had been the primary caregiver for thesubject children for their entire lives, and had almost single-handedly addressed theirmedical and educational needs. In addition, the Family Court failed to give sufficientweight to the fact that awarding the father sole legal and physical custody of the subjectchildren would unavoidably separate them from their younger brother from the mother'ssecond marriage. Under the totality of the circumstances, the best interests of the subjectchildren would not be served by awarding the father sole legal and physical custody(see Eschbach v Eschbach, 56 NY2d at 171).
In light of our determination, we need not address the mother's remainingcontentions. Skelos, J.P., Chambers, Hall and Miller, JJ., concur.