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In re Batchelder

Supreme Court of New York, Third Department

May 30, 2013

In the Matter of JAMES BATCHELDER, Respondent,
v.
KEELEY BonHOTEL, Appellant. (And Two Other Related Proceedings.)

Calendar Date: April 18, 2013

Michelle I. Rosien, Philmont, for appellant.

Michael S. Martin, Glens Falls, for respondent.

Rose T. Place, Glens Falls, attorney for the child.

Before: Lahtinen, J.P., McCarthy, Garry and Egan Jr., JJ.

MEMORANDUM AND ORDER

Egan Jr., J.

Appeal from an order of the Family Court of Warren County (Breen, J.), entered January 17, 2012, which, among other things, partially granted petitioner's application, in a proceeding pursuant to Family Ct Act article 6, to modify a prior order of custody.

Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the unmarried parents of a son (born in 2008). After the parties separated in 2009, they consented to an order of joint legal custody, with primary physical custody to the mother and alternating weekend visitation to the father. Thereafter, the father consistently exercised his visitation with the child, and the child, in turn, benefitted from meaningful contact with both of his parents.

In March 2011, the mother was evicted from her apartment in Warren County; within a matter of days, the mother made plans to move with the child — and two of her children from prior relationships — to Decatur, Alabama in order to live with her fiancé, whom she had met online five months earlier. The mother did not inform the father of her plans until the night prior to the scheduled departure, nor did she obtain the father's consent or Family Court's permission prior to relocating. [1]

The father promptly commenced two of the proceedings now before us — one alleging a violation of the prior custody order and the other seeking, among other things, sole legal and physical custody of the child. In response, the mother commenced a separate proceeding requesting, among other things, permission to relocate with the child to Alabama. Family Court ordered that the child be returned to New York and awarded temporary custody to the father.

At the conclusion of the hearing that followed, Family Court found, among other things, that the father met his burden of establishing a substantial change in circumstances warranting a modification of the prior custody order and, further, that the proposed relocation was not in the child's best interests. Accordingly, Family Court awarded the parties joint legal custody of the child with primary physical custody to the father and visitation to the mother.

Initially, the parties do not dispute that the mother's relocation to Alabama constituted a sufficient change in circumstances warranting modification of the existing custody arrangement; hence, the issue distills to whether Family Court properly denied the mother's request to relocate and, further, whether the resulting award of physical custody to the father was in the child's best interests (see Matter of Sofranko v Stefan, 80 A.D.3d 814, 815 [2011]). As the party seeking to relocate, the mother bore the burden of proving by a preponderance of the credible evidence that the proposed relocation would be in the child's best interests (see Matter of Shirley v Shirley, 101 A.D.3d 1391, 1392 [2012]; Matter of Munson v Fanning, 84 A.D.3d 1483, 1484 [2011]; Matter of Sofranko v Stefan, 80 A.D.3d at 815). Resolution of that issue, in turn, requires a court to consider numerous factors, "including the child's relationship with each parent, the effect of the move on contact with the noncustodial parent, the potential enhancement to the custodial parent and child due to the move, and each parent's motives for seeking or opposing the move" (Matter of Sara ZZ. v Matthew A., 77 A.D.3d 1059, 1060 [2010]; see Matter of Tropea v Tropea, 87 N.Y.2d 727, 740-741 [1996]; Matter of Williams v Williams, 90 A.D.3d 1343, 1344 [2011]). Given that Family Court is in the best position to make factual findings and credibility determinations, its decision will not be disturbed if it is supported by a sound and substantial basis in the record (see Scott VV. v Joy VV., 103 A.D.3d 945, 946 [2013], lv denied ___ N.Y.3d ___ [Apr. 30, 2013]).

Although the mother contends that her fear of impending homelessness prompted her relocation out of state, the record reflects that the mother's desire to be with her fiancé, whom she had met only months before, was the true impetus behind the move. Notably, the mother quit her job — her sole source of income aside from child support and government assistance — in order to relocate to Alabama, where she remains completely dependent upon her fiancé and has neither a plan nor the means by which to support her children should her romantic relationship terminate [2]. Indeed, at the time of the hearing, the mother was unemployed and living off of the child support received for another child and her fiance's income. To the extent that the mother asserted that Alabama offered greater diversity and enhanced cultural opportunities for the child, no proof was submitted to substantiate these claims. Similarly, although the mother testified that Alabama schools are superior in that "they really focus on the needs of the child, " she failed to offer any proof from which Family Court reasonably could conclude that the Alabama school system was a significant improvement over the school system in Warren County (see Matter of Scheffey-Hohle v Durfee, 90 A.D.3d 1423, 1428 [2011], appeal dismissed 19 N.Y.3d 876 [2012]; Matter of Williams v Williams, 90 A.D.3d at 1344-1345). [3]

As to the quality of the child's relationship with his respective parents, it is clear that each parent loves the child and desires to spend time with him and that he, in turn, has a close and loving relationship with each of them. Although the mother enjoyed primary physical custody up until the time she relocated to Alabama, the father consistently exercised his visitation, and it is clear from the record that the proposed relocation would be highly detrimental to the father's existing relationship with the child — particularly ...


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