| Matter of Seeley v Seeley |
| 2014 NY Slip Op 05381 [119 AD3d 1164] |
| July 17, 2014 |
| Appellate Division, Third Department |
[*1]
| 1 In the Matter of Kate S. Seeley,Respondent, v George B. Seeley, Appellant. Attorney for the Child, Appellant.(Proceeding No. 1.) In the Matter of George B. Seeley, Appellant, v Kate Seeley,Respondent, and Mary A. Klein, Formerly Known as Mary A. Sellers, Appellant.Attorney for the Child, Appellant. (Proceeding No. 2.) (And Another RelatedProceeding.) |
Monica Carrascoso, Cooperstown, for George B. Seeley and another, appellants.
Joseph A. Nalli, Fort Plain, for attorney for the child, appellant.
Carol Malz, Oneonta, for respondent.
Rose, J. Appeals from an order of the Family Court of Otsego County (Burns, J.),entered January 29, 2013, which, among other things, dismissed petitioner's application,in proceeding No. 2 pursuant to Family Ct Act article 6, to modify a prior order ofcustody.
George B. Seeley (hereinafter the grandfather) was granted custody of a child (bornin 2004) of his daughter, Kate S. Seeley (hereinafter the mother), pursuant to a 2005consent order. A subsequent consent order entered in 2009 provided that the mother wasto have visitation once a week as she and the grandfather could agree. The 2009 orderalso provided that the maternal grandmother, respondent Mary A. Klein (hereinafter thegrandmother), who is no longer married to the grandfather and lives in California, wouldbe allowed four visits per year with the child in New York for seven days and atwo-week visit in California during the summer. The mother, claiming that thegrandfather interfered with her ability to exercise visitation, commenced proceeding No.1 in 2012 to enforce the 2009 order. The grandfather then commenced proceeding No. 2seeking permission to relocate with the child, and the mother responded with amodification petition seeking physical custody of the child. Following a fact-findinghearing, Family Court dismissed the grandfather's relocation proceeding and awarded themother visitation every weekend throughout the school year, alternating weeks duringsummer vacation and certain holidays. The court made no mention of the grandmother'svisitation. The grandfather, grandmother and the attorney for the child now appeal.
We are not persuaded that Family Court erred by denying the grandfather's request torelocate with the child to the Village of Saranac Lake in Franklin County, which isapproximately four hours away from the mother's residence. It is well settled that theparty seeking to relocate must show "by a preponderance of the credible evidence that theproposed move [is] in the child['s] best interests" (Matter of Shirley v Shirley, 101 AD3d 1391, 1392 [2012];accord Matter ofScheffey-Hohle v Durfee, 90 AD3d 1423, 1425 [2011], appealdismissed 19 NY3d 876 [2012]). The relevant factors to be considered include the" 'reasons for seeking or opposing the move, the quality of the relationshipsbetween the child and the custodial and noncustodial parents, the impact of the move onthe quantity and quality of the child's future contact with the noncustodial parent, thedegree to which the custodial parent's and child's life may be enhanced economically,emotionally and educationally by the move, and the feasibility of preserving therelationship between the noncustodial parent and the child through suitable visitationarrangements' " (Matterof Weber v Weber, 100 AD3d 1244, 1245 [2012], quoting Matter of Tropeav Tropea, 87 NY2d 727, 740-741 [1996]).
Family Court concluded that the grandfather failed to establish that the move wouldimprove his financial situation. The court found that his desire to provide moreopportunity for the child to engage in winter sports, at the cost of having less time withhis mother, was misguided. The court also concluded that, given the distance involved,the mother's limited resources and the grandfather's demonstrated hostility with respect totransporting the child the 10-mile distance between the parties' current residences, theproposed move would have a significant negative impact on the mother's access to thechild. As the court's conclusion denying relocation is supported by a sound andsubstantial basis in the record, we decline to disturb it (see Rose v Buck, 103 AD3d957, 960 [2013]; Matter ofPizzo v Pizzo, 94 AD3d 1351, [*2]1353 [2012];Matter of Munson vFanning, 84 AD3d 1483, 1485 [2011]).
With respect to the attorney for the child's contention that the mother's visitationschedule should be modified so that the child may remain with the grandfather for oneweekend per month in order to be able to engage in recreational activities with him, wenote that it is within Family Court's broad discretion to fashion an appropriate visitationschedule based on the best interests of the child (see Lo Presti v Lo Presti, 40NY2d 522, 527 [1976]; Matterof Hayward v Thurmond, 85 AD3d 1260, 1262 [2011]; Matter of Marshall v Bradley,59 AD3d 870, 870-871 [2009]). Here, the mother was entitled to weekly visitationby the terms of the prior order, and her original petition was based on the allegation thatshe had encountered difficulty in obtaining the grandfather's agreement to that schedule.Family Court affixed blame on both parties for the difficulties, concluded that the motherhad made significant progress in dealing with her physical and mental issues and, givenher close relationship with the child, concluded that visitation pursuant to a fixedschedule would reduce uncertainty and promote the child's best interests.
While we see no basis for disturbing Family Court's determination that it is in thechild's best interests to have a set schedule of visitation with the mother, we must agreewith the attorney for the child that the schedule devised by the court gives such extensivetime to the mother during the school year that the child is effectively deprived of anyrecreational time in his own home with the grandfather on days when school is not insession. The schedule provides visitation to the mother in her home located away fromthe child's neighborhood and school friends on every weekend during the school yearfrom Friday evening through Sunday evening and, when school is closed on Mondays,through Monday evening. The mother also has visitation during every Christmas andFebruary break. In alternate years, the child will spend the Thanksgiving break,Christmas Eve, Christmas Day and his birthday with the grandfather; otherwise, virtuallyall nonschool days during the school year are allocated to the mother. Family Court madeno finding that it is in the child's best interests to have such severely limited opportunitiesfor recreation with his school friends and so little free time with his grandfather. Nor dowe find a sound and substantial basis in the record that would support such afinding.
While the preferences of a child are not dispositive, they offer some indication of hisor her best interests and are a factor to be taken into account in making custody andvisitation decisions (see Matterof Rivera v LaSalle, 84 AD3d 1436, 1438 [2011]; Matter of Flood v Flood, 63AD3d 1197, 1198-1199 [2009]; see generally Matter of Kilmartin v Kilmartin, 44 AD3d1099, 1102 [2007]). Here, no Lincoln hearing was conducted due to whatFamily Court described as the "adamant objection" of the attorney for the child. Further,the court's decision does not reflect that the child's wishes were either known to it orconsidered by it in devising the visitation schedule. Accordingly, we grant the request ofthe attorney for the child and remit the matter to Family Court to determine in itsdiscretion whether a Lincoln hearing would now be helpful and, in any event, toconsider the wishes of the child in determining whether a modification of the visitationschedule is warranted to allow the grandfather and child to spend at least some scheduledrecreational time together on weekends and holiday breaks during the school year.
Finally, the parties and the attorney for the child all agree that Family Court shouldhave accounted for the grandmother's visitation with the child in its order. The motheradds only that the amount and timing of the grandmother's visitation should bereconsidered upon remittal in light of the parties' continued hostility and her ownschedule of visitation. Inasmuch as Family [*3]Court'sfailure to mention the grandmother's visitation in its decision appears to have been a mereoversight, we agree that, upon remittal, the court should also determine an appropriateschedule of visitation for her.
Peters, P.J., Lahtinen, Garry and Devine, JJ., concur. Ordered that the order ismodified, on the law, without costs, by reversing so much thereof as awarded visitationto Kate S. Seeley and failed to award visitation to respondent Mary A. Klein; matterremitted to the Family Court of Otsego County for further proceedings not inconsistentwith this Court's decision, and, pending said proceedings, the visitation terms of saidorder shall remain in effect on a temporary basis; and, as so modified, affirmed.