| Matter of Jones v Soriano |
| 2014 NY Slip Op 03891 [117 AD3d 1350] |
| May 29, 2014 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Brittany Jones, Appellant, v ErnestoSoriano, Respondent. |
Randolph Kruman, Cortland, for appellant.
Stone & Stone, Vestal (Michelle E. Stone of counsel), for respondent.
Sarah Loughran, Binghamton, attorney for the child.
Rose, J. Appeal from an order of the Family Court of Broome County (Connerton,J.), entered October 29, 2012, which dismissed petitioner's application, in a proceedingpursuant to Family Ct Act article 6, to modify a prior order of custody.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) are theunmarried parents of one child (born in 2010). Following the birth of the child, thecouple resided together and, working opposite schedules, shared in her care. Theyseparated in March 2011 and, in August 2011, pursuant to a stipulated order, agreed tojoint legal custody, primary physical custody with the mother and parenting time with thefather every other weekend from 12:00 p.m. on Saturday to 4:00 p.m. on Sunday.
In January 2012, when the mother and father had both been unemployed for a year,the mother approached the father and asked him about moving to Florida with her, thechild and the child's maternal grandmother, as the mother had been offered employmentthere. The father agreed and the parties left for Florida but, days later, the father decidedagainst the move and returned to New York. Upon his return, the father commenced acustody proceeding, among others, and the mother then, among other things, commencedthis proceeding to allow her to relocate. Following a hearing, Family Court dismissed themother's petition for relocation. The [*2]mother nowappeals.
We affirm. The parent seeking to relocate with a child bears the burden todemonstrate, by a preponderance of the credible evidence, that the relocation would be inthe best interests of the child (see Matter of Stetson v Feringa, 114 AD3d 1089, 1090[2014]; Matter ofScheffey-Hohle v Durfee, 90 AD3d 1423, 1425 [2011], appealdismissed 19 NY3d 876 [2012]). Factors to be considered in making such adetermination include " 'each parent's reasons for 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 [non-moving] parent, the degree to which the [moving] parent's and child's lifemay be enhanced economically, emotionally and educationally by the move, and thefeasibility of preserving the relationship between the [non-moving] parent and childthrough suitable visitation arrangements' " (Rose v Buck, 103 AD3d 957, 958 [2013], quoting Matter of Sniffen v Weygant,81 AD3d 1054, 1055 [2011], appeals dismissed 16 NY3d 886 [2011], 17NY3d 884 [2011]; see Matter of Tropea v Tropea, 87 NY2d 727, 740-741[1996]). Family Court is in the best position to make factual findings and credibilitydeterminations and, therefore, its decision will not be disturbed when it is supported by asound and substantial basis in the record (see Matter of Stetson v Feringa, 114AD3d at 1090; Rose v Buck, 103 AD3d at 958).
Here, the testimony established that both parents were committed and had anemotional bond with the child, and Family Court found that, despite transportationchallenges, the father had exercised most of his visitation time. While the mother's desireto relocate to Florida in an effort to create economic opportunity is admirable, the recorddemonstrates that, at the time of the hearings, she was working as a hotel desk agent atslightly higher than minimum wage. While there was further testimony that the childenjoyed certain recreational opportunities and attended a local day care there, the recordas a whole fails to establish "that relocation would substantially enhance the child'seconomic, emotional or educational well-being" (Matter of Scheffey-Hohle vDurfee, 90 AD3d at 1428; see Matter of Stetson v Feringa, 114 AD3d at1091; Rose v Buck, 103 AD3d at 961).
Furthermore, the record supports Family Court's conclusion that relocation wouldhave a negative impact on the quality and quantity of the child's future contact with thefather, particularly in light of the parties' limited resources (see Rose v Buck, 103AD3d at 960-961; Matter ofMunson v Fanning, 84 AD3d 1483, 1485 [2011]). Despite the mother'sinsistence that she would endeavor to provide the father with the same number of totalhours of visitation each year, there is no doubt that he would be deprived of" 'regular and meaningful access to his child and, more to the point, that [thechild] no longer will benefit from his consistent presence in her life' " (Rose vBuck, 103 AD3d at 960-961, quoting Matter of Scheffey-Hohle v Durfee, 90AD3d at 1427).
Stein, J.P., McCarthy and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.