In the Matter of a custody/Visitation Proceeding, SAMANTHA J.M., Petitioner,
ANTHONY T.C., Respondent.
[971 N.Y.S.2d 181]
Samantha J.M., with and by Ted A. Barraco, Esq.
Anthony T.C., with and by Kelly M. Ciccone, Esq.
Kathleen L. Perrault, Esq., Attorney for the Child.
[971 N.Y.S.2d 182]
PATRICIA E. GALLAHER, J.
Before the court is the interesting issue of whether this is a relocation case, governed by the Tropea factors, when brought approximately 7 months after the mother moved 5 hours away with the child. The relevant stipulated order, giving 50/50 shared residency, had not determined who had primary physical residence but identified the father's residence as controlling for educational purposes. There was no express stipulation against moving out of the county with the child.
If it is not a relocation case, the key issue is who should have primary physical residence when the mother has left the father, taking the child to live with her parents in Monroe County, while the father has remained in Saratoga County. Also at issue is whether the mother should have a permanent order of protection against the father.
SUMMARY OF HOLDINGS
At trial, the mother's testimony was credible and the father's was not when it conflicted with the mother's testimony. The mother's stepfather and mother were also credible witness. Though this was previously a joint custody case, after all the litigation, it no longer is. ( E.g., Hill v. La Paglia, 306 A.D.2d 909, 761 N.Y.S.2d 905 [4th Dept. 2003] ).
For the reasons set forth below, this court finds that this case is not a relocation case governed by the so-called Tropea factors, such as economic necessity, and further that the best interests of Lillian require that sole custody and primary physical residence be awarded to the mother, who shall be allowed to continue to reside in Monroe County. This decision is supported by the attorney for the child. Furthermore, the father's enforcement petition is dismissed in the interests of justice, and the mother is granted a one-year final order of protection.
KEY FACTS REGARDING WHETHER THIS IS A RELOCATION CASE
The key question to be resolved on the issue of whether this is a relocation case is whether the father waited too long to file a petition after the mother had moved. In this regard, the relevant facts are as follows. In May of 2009 the parties entered into a stipulated order in Saratoga County for 50/50 shared custody of their child, Lillian (DOB 9/23/05). At that time both Anthony C. (" father" ) and Samantha M.(" mother" ) lived in Saratoga County and had resided together there. The parties reconciled in early 2010 and for approximately 20 months after reconciling, the parties lived together without modifying the 50/50 order. They lived with their child Lillian and the father's teenage son, and with frequent visits by the father's other two children. In September 2011 they split up again, after a physical incident between the father's teenage son and the mother which it is agreed included the mother threatening the son with a sharp object, which led to the father telling the mother " she no longer had rights to his children" . By that he testified he meant, for example, she could not tell the kids to go to their rooms if they were " acting up" as she had before. The reason the mother moved out, as quoted by the father's attorney in her brief, was as follows:
His eldest son and I had a disagreement and T. had told me I no longer had rights to his children. And if I didn't like it, I needed to pack and get out. She chose to move out, and a few weeks later she took Lilly with her to live with her parents in the Rochester area.
Mother testified the father consented to her moving, without conditions, and helped [971 N.Y.S.2d 183] her pack for the move. Even the father testified he " allowed" her to move, but said it was only temporary permission, and he claims the mother agreed to come back in six months— and had represented to him that she was going to get a job which would lead to a job back in Saratoga County in six months. The mother disputes that there was a temporary agreement, and disputes that she agreed to come back in six months. The father testified he knew someone who had done something similar and knew that the mother's stepfather worked for the county. While the father argues he believes that the mother was going to get some six-month county job through her stepfather and use that to transfer back to Saratoga County, this did not happen, and the mother and stepfather deny that it was the plan. It is indeed a somewhat incredible claim on its face. The mother's stepfather testified it was not even a possibility, given the mother's lack of qualifications.
The father started this litigation more than six months after the mother had moved with the child to Monroe County to live with her mother and stepfather and argues the mother's alleged promise to come back to Saratoga County justifies his failure to file his enforcement petition regarding her move for some seven months. The father's enforcement petition  was filed in Saratoga County on April 24, 2012, alleging that the move violated his 50/50 parenting time provided by the May 2009 order, and that he was duped by the mother into thinking she was only moving temporarily to Monroe County to get a job which would lead to a job back in Saratoga County. The mother thereafter on June 20, 2012, filed her petitions for modification of the prior custody order in Monroe County and for an order of protection. The father argues the modification petition was actually a petition for permission to relocate to Monroe County. The enforcement petition was transferred to Monroe County, by the Saratoga County Family Court Judge, without consultation with this court, to be heard with the mother's ...