| Matter of Adams v Robertson |
| 2015 NY Slip Op 00259 [124 AD3d 946] |
| January 8, 2015 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Leigha Adams, Respondent-Appellant,v Ryan Robertson, Appellant-Respondent. (And Two Other RelatedProceedings.) |
Friedman & Molinsek, PC, Delmar (Andrew H. Wood of counsel), forappellant-respondent.
Michael J. Genute, Norwich, for respondent-appellant.
Lisa Natoli, Norwich, attorney for the child.
Devine, J. Cross appeals from an order of the Family Court of Chenango County(Revoir Jr., J.), entered August 9, 2013, which, among other things, granted petitioner'sapplication, in a proceeding pursuant to Family Ct Act article 6, to modify a prior orderof custody.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) are theunmarried parents of a son (born in 2008). The parties—who were high schoolstudents when the child was born—lived with the mother's parents forapproximately two years until they decided to move into their own apartment to raise thechild. However, after living together for a few months, the parties' relationshipdeteriorated and the mother, along with the child, moved back in with her parents.Pursuant to a stipulation of both parties, an order was entered in 2012 granting theparents joint legal custody, awarding primary physical custody of the child to the motherand establishing a visitation schedule for the father.
In October 2012, the mother married a Marine corporal who she had been dating formore than a year. Upon discovering that her husband was assigned to be stationed on amilitary [*2]base in North Carolina when he returnedfrom serving abroad, the mother petitioned Family Court for approval to relocate her sonfrom the City of Norwich, Chenango County to Camp Lejeune in North Carolina.Additionally, the mother filed a violation petition, alleging that the father had refused herequal access to the child on the previous Easter Sunday.
Following a fact-finding hearing, Family Court issued a detailed and well-reasonedorder which, among other things, permitted the mother to relocate the child to NorthCarolina, granted the father liberal parenting time with the child and dismissed theviolation petition. As a final provision, Family Court expressly prohibited the motherfrom moving outside of Camp Lejeune without receiving the necessary court approvaland, further, retained jurisdiction in all child custody matters for a two-year period. Bothparties now appeal.
The father asserts that Family Court erred in allowing the mother to relocate thechild, alleging that the mother failed to demonstrate that such a move would serve thebest interests of the child and, further, that the decision will negatively impact hisrelationship with his son. The mother had the heavy burden of showing by apreponderance of the evidence that relocating the child was in his best interests (see Matter of Seeley v Seeley,119 AD3d 1164, 1165 [2014]; Matter of Cole v Reynolds, 110 AD3d 1273, 1273-1274[2013]; Matter of Shirley vShirley, 101 AD3d 1391, 1392 [2012]). In making a best interestsdetermination, the court must consider various factors, including the child's relationshipwith each parent, the effect that relocation will have on the child's contact with thenoncustodial parent, the potential advantages that the proposed relocation will offer thechild and the custodial parent and the reasons each parent has in supporting or opposingsuch relocation (see Matter ofBracy v Bracy, 116 AD3d 1172, 1173 [2014]; Matter of Batchelder vBonHotel, 106 AD3d 1395, 1396 [2013]; Scott VV. v Joy VV., 103 AD3d 945, 946 [2013], lvdenied 21 NY3d 909 [2013]). As we defer to Family Court's opportunity to makefactual findings and credibility determinations, we shall not disturb its ultimate custodydetermination where it has a sound and substantial basis in the record (see Matter of Jones v Soriano,117 AD3d 1350, 1351 [2014], lv denied 24 NY3d 901 [2014]; Matter of Stetson v Feringa,114 AD3d 1089, 1090 [2014]).
While a part of the mother's desire to relocate centers on uniting with her husband,the record makes it clear that the move to North Carolina will afford the child withemotional and economic stability. The mother testified that, while her husband's militaryservice placed him in Japan, he was deemed involuntarily separated from his family,thereby allowing the mother to receive a housing allowance and health insurance whileliving in New York. However, because the husband had been assigned to serve in NorthCarolina, the mother would lose the housing allotment if she were forced to remain inNew York, because her separation from her husband would be considered voluntary andthe funds would have to be applied toward the husband's residence in North Carolina.Under that scenario, the mother indicated that she and her son would have to move backin with her parents and, in addition, that she would no longer have access to her and herhusband's vehicle, as her husband would require the vehicle to commute to work. Themother also testified that relocating the child to a warmer locale would help the childavoid contracting ear infections, which increased in frequency when exposed to coldwinter weather. Further, trial testimony revealed that the child would have access to aneducation in a military school and would be eligible to receive college tuition assistancethrough the husband's military affiliation. Overall, while both parties love their child, therelationship between the child and the mother is an extremely close one, and FamilyCourt had ample evidence to conclude that the child will surely benefit from theenhanced standard of living that the proposed relocation stands to offer (see Matter ofTropea v Tropea, 87 NY2d 727, 740-741 [1996]).
The father argues that relocation should not have been granted, as it will affect the[*3]quality of contact that he has with his son. While thefrequency of the father's parenting time with the child has been limited under thecircumstances, the court expanded the amount of time in the father's visitation schedule,which included, among other things, six consecutive weeks during the summer, vacationweeks during the winter and spring, holidays and the option to have parenting time withthe child in North Carolina. The order further required the mother to make variousaccommodations to assist the father in accessing his son, including providing housingand helping transport the child to New York for certain weeks of the father's parentingtime. The mother agreed to undertake any efforts necessary to promote the father-childrelationship, including establishing regular phone and online video communications.Accordingly, we cannot agree with the father's claim that the quality of his relationshipwith his child will deteriorate as a result of the court's decision in this matter (seeMatter of Shirley v Shirley, 101 AD3d at 1393; Matter of Cole v Reynolds,110 AD3d at 1275-1276), and conclude that, as the child's relocation fully promotes thechild's best interests, Family Court's order should be affirmed in all respects.
Finally, we have reviewed the mother's challenges to, among other things, the FamilyCourt's dismissal of her violation petition and retention of jurisdiction of the parties'custody matters and have found them to be unpreserved or lacking in merit.
Lahtinen, J.P., Garry and Rose, JJ., concur. Ordered that the order is affirmed,without costs.