| Matter of Norback v Norback |
| 2014 NY Slip Op 01219 [114 AD3d 1036] |
| February 20, 2014 |
| Appellate Division, Third Department |
| In the Matter of Angela L. Norback,Appellant, v Erik S. Norback, Respondent. |
—[*1] Pro Bono Appeals Program, Albany (Alan J. Pierce of counsel), for respondent. G. Scott Walling, Pembroke Pines, Florida, attorney for the children.
Rose, J. Appeal from an order of the Family Court of St. Lawrence County (Morris,J.), entered September 13, 2012, which partially granted petitioner's application, in aproceeding pursuant to Family Ct Act article 6, for modification of a prior order ofcustody.
The parties entered into a stipulation of settlement in October 2011 awarding solelegal custody of their two children (born in 1998 and 2003) to petitioner (hereinafter themother) and parenting time on Tuesdays, alternate weekends and holidays to respondent(hereinafter the father). Following the stipulation, the father attempted to visit with thechildren, but they were resistant to any visitation or contact with him and he soonstopped making attempts. In March 2012, the mother commenced this proceedingseeking modification of the prior custody order to allow her to relocate with the childrento South Carolina. Following a hearing, Family Court denied the mother's request torelocate, reduced the father's visitation with the children and ordered the mother to obtainmental health services for them. The mother appeals.
The threshold determination in a relocation proceeding is whether the proposedrelocation would be in the best interests of the children (see Matter of Shirley v Shirley,101 AD3d 1391, 1392 [2012]; Matter of Munson v Fanning, 84 AD3d 1483, 1484[2011]). In making such a determination, the factors to be considered include "eachparent's reasons for [*2]seeking or opposing the move,the quality of the relationships between the child and the custodial and noncustodialparents, the impact of the move on the quantity and quality of the child's future contactwith the noncustodial parent, the degree to which the custodial parent's and child's lifemay be enhanced economically, emotionally and educationally by the move, and thefeasibility of preserving the relationship between the noncustodial parent and childthrough suitable visitation arrangements" (Matter of Tropea v Tropea, 87 NY2d727, 740-741 [1996]).
While there was evidence here that the move would have an adverse impact on thefather's relationship with the children and his ability to visit them, it is significant that thefather has had little contact with the children due to their apparent animosity toward him.Yet, as noted by Family Court, the evidence in the record sheds no light on the reasonsunderlying the children's hostility. Nevertheless, despite the mother's repeated requestsand the support of the attorney for the children, Family Court declined to conduct aLincoln hearing with the then 9- and 13-year-old children to ascertain their pointsof view and the reasons for their strained relationship with their father. Without thebenefit of the information to be obtained from a Lincoln hearing, there isinsufficient evidence here concerning the children's relationship with the father todetermine what, if any, modification to the prior order is in their best interests (see Matter of Yeager v Yeager,110 AD3d 1207, 1209-1210 [2013]; Matter of Jessica B. v Robert B., 104 AD3d 1077, 1078[2013]; Matter of Flood vFlood, 63 AD3d 1197, 1199 [2009]; Spain v Spain, 130 AD2d 806, 808[1987]). Accordingly, we reverse and remit this matter to Family Court for furtherproceedings.
McCarthy, J.P., Garry and Egan Jr., JJ., concur. Ordered that the order is reversed, onthe law, without costs, and matter remitted to the Family Court of St. Lawrence Countyfor further proceedings not inconsistent with this Court's decision.