| Matter of Hall v Hall |
| 2014 NY Slip Op 04487 [118 AD3d 879] |
| June 18, 2014 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Ezra K. Hall,Appellant, v Kevin F. Hall, Respondent. Kellon Hall, NonpartyAppellant. |
Jeffrey C. Bluth, Brooklyn, N.Y., for petitioner-appellant.
Karen P. Simmons, Brooklyn, N.Y. (Barbara H. Dildine and Janet Neustaetter ofcounsel), attorney for the child, nonparty appellant Kellon Hall.
Kevin F. Hall, Valley Stream, N.Y., respondent pro se.
In a child custody proceeding pursuant to Family Court Act article 6, the mother andthe subject child separately appeal from an order of the Family Court, Kings County(Katz, J.), dated March 21, 2013, which, after a hearing, denied the mother's petition tomodify the custody provisions set forth in a stipulation of settlement dated January 9,2009, which was incorporated but not merged in the parties' judgment of divorce datedApril 6, 2010, so as to allow her to relocate to Georgia with the subject child.
Ordered that the order is reversed, on the law, without costs or disbursements, thepetition is granted, and the matter is remitted to the Family Court, Kings County, for ahearing to establish an appropriate post-relocation visitation schedule for the father.
The parties were married and had one child together. They were divorced in April2010. The parties entered into a stipulation of settlement, which was incorporated but notmerged in the parties' judgment of divorce, whereby the mother received sole custody ofthe subject child, and the father was given certain visitation. The mother filed a petitionin February 2011 seeking permission to relocate with the child to Georgia, where herfiancé, now husband (hereinafter the husband), works for General Electric as achemical engineer and owns a three-bedroom house. After a hearing, the Family Courtdenied the mother's petition, finding that the mother's goal of uniting her family unitcould be achieved without uprooting the child, if the husband were willing to seriouslypursue employment in New York. The court also found that the father would be deprivedof regular and meaningful access to the child, and that the child would no longer benefitfrom the father's consistent presence in his life. The court determined that the motherfailed to meet her burden of establishing that the proposed relocation was in the child'sbest interests. The mother and the child separately appeal.
The Family Court erred in denying the mother's modification petition so as to allowher to relocate to Georgia with the subject child. A parent's relocation request must beconsidered [*2]on its own merits with due considerationof all the relevant circumstances, and with predominant emphasis being placed on whatoutcome is most likely to serve the best interests of the child (see Matter of Tropea vTropea, 87 NY2d 727, 739 [1996]). Courts are free to consider and give appropriateweight to all of the factors that may be relevant to the determination. These factorsinclude, but are not limited to, each parent's reasons for seeking or opposing the move,the quality of the relationships between the child and both parents, the impact of themove on the quantity and quality of the child's future contact with the noncustodialparent, the degree to which the custodial parent's and child's life may be enhancedeconomically, emotionally, and educationally by the move, and the feasibility ofpreserving the relationship between the noncustodial parent and child through suitablevisitation arrangements. It is for the court to determine, based on all of the proof, whetherit has been established by a preponderance of the evidence that a proposed relocationwould serve the child's best interests (see id. at 740-741). In relocationproceedings, this Court's authority is as broad as that of the hearing court. A relocationdetermination will not be permitted to stand unless it is supported by a sound andsubstantial basis in the record (see Matter of Caruso v Cruz, 114 AD3d 769 [2014]; Matter of Hamed v Hamed, 88AD3d 791 [2011]). The Family Court's determination here was not supported by asound and substantial basis in the record.
The mother proved by a preponderance of the evidence that moving to Georgia wasin the child's best interests. The mother has been the child's primary caregiver since hisbirth. The father has been substantially less involved in the child's life (see Matter of Shannon J. v AaronP., 111 AD3d 829 [2013]; Matter of Davis v Ogden, 109 AD3d 539 [2013]). Thefather had no communication with the child for approximately one year after the motherand the child left the marital residence following the paternal grandmother's filing of aneviction petition against them. The mother attends meetings at the child's school,extracurricular activities, and medical appointments, while the father generally does notattend school meetings or events or medical appointments, or communicate with thechild's doctors or teachers (see Matter of Davis v Ogden, 109 AD3d at 540; Matter of Vargas v Dixon, 78AD3d 1431 [2010]; Matterof Sara ZZ. v Matthew A., 77 AD3d 1059 [2010]). The father has beeninconsistent in exercising visitation, making last-minute changes to the visitationschedule set forth in the stipulation and failing to exercise the three weeks of summervisitation set forth in the stipulation until 2012, while the hearing was pending (seeMatter of Hamed v Hamed, 88 AD3d at 792; Matter of Vargas v Dixon, 78AD3d at 1433; Matter of Linn vWilson, 68 AD3d 1767 [2009]).
The record demonstrates that the move would not have an adverse impact on therelationship between the father and the child. Although the mother's relocation will havean impact on the father's ability to spend time with the child, a liberal visitation schedule,including extended visits during summer and school vacations, will allow for thecontinuation of a meaningful relationship between the father and the child (see Matter of Hirtz v Hirtz, 108AD3d 712 [2013]; Matterof Tracy A.G. v Undine J., 105 AD3d 1046 [2013]), and will allow the child tospend meaningful time with the paternal grandmother, with whom he has a goodrelationship (see Matter of Tracy A.G. v Undine J., 105 AD3d at 1048). Themother has promised to comply with an order of visitation, and to promote andencourage the father-child relationship, including visits and communication by othermeans. Significantly, both the mother and the husband testified that they will pay for thechild's travel expenses. There is nothing to indicate that the mother will not comply withvisitation, especially given that the father acknowledged that she abided by the terms ofthe stipulation regarding visitation. Under the circumstances of this case, less frequentbut more extended visits will be equally conducive, or perhaps even more conducive, tothe maintenance of a close father-child relationship, as such extended visits will givethem the opportunity to interact in a normalized domestic setting (see Tropea vTropea, 87 NY2d at 738; Matter of Parish A. v Jamie T., 49 AD3d 1322 [2008]).Indeed, under a schedule granting the father extended visitation, the father potentiallycould have even more time with the child than under the current schedule (see Matterof Vargas v Dixon, 78 AD3d at 1433). Accordingly, it will be feasible to preservethe father-child relationship through suitable visitation arrangements.
The record further reveals that the move will have multiple benefits for the child,emotionally, economically, and educationally. The husband and the child have developeda loving and mutually supportive relationship, as have the child and his half-sister; thus,the move will benefit the child by strengthening and stabilizing the new post-divorcefamily unit (see Thompson v Smith, [*3]277AD2d 520 [2000]; see alsoMatter of Bobroff v Farwell, 57 AD3d 1284 [2008]; Matter of Parish A. vJamie T., 49 AD3d at 1323). The husband has a stable job in Georgia and, since2007, has owned a three-bedroom home with a backyard. The move will enable the newfamily unit to reduce their living expenses by not having to maintain two separatehouseholds, which will benefit the child (see Bobroff v Farwell, 57 AD3d at1286). The family already has social contacts in Georgia, including a church community,and the child has made friends there.
The child's interests will be better served by fashioning a visitation plan thatmaximizes the father's opportunity to maintain a positive nurturing relationship with thechild while enabling the mother, who has the primary child-rearing responsibility, tomove forward with her life (see Tropea v Tropea, 87 NY2d at 740; Matter ofGillard v Gillard, 241 AD2d 966 [1997]).
During the in camera interview, the child expressed his desire to move to Georgia.While a child's expressed preference in a custody proceeding is not determinative, it issome indication of what is in the child's best interests (see Eschbach v Eschbach,56 NY2d 167, 173 [1982]; Cervera v Bressler, 90 AD3d 803 [2011]), particularlywhere the attorney for the child recommended that the child's wishes be given weight,and where the interview demonstrates the child's level of maturity and ability to articulatehis preferences (see Matter ofWinston v Gates, 64 AD3d 815 [2009]). Finally, the attorney for the childsupported relocation as being in the child's best interests, and that determination is notcontradicted by the record and is entitled to some weight (see Matter of Hamed vHamed, 88 AD3d at 792; see also Matter of Sahagun v Alix, 107 AD3d 722[2013]).
Given that the preponderance of the evidence established that the move, with aliberal visitation schedule for the father, will be in the child's best interests, the FamilyCourt erred in denying the mother's modification petition so as to allow her to relocatewith the child to Georgia. Accordingly, we reverse the order appealed from, grant themother's petition, and remit the matter to the Family Court, Kings County, to establish avisitation schedule. Mastro, J.P., Rivera, Balkin and Miller, JJ., concur.