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In re Michelle V.

Supreme Court of New York, Third Department

October 24, 2013

In the Matter of MICHELLE V., Appellant,
BRANDON., Respondent. (And Another Related Proceeding.)

Calendar Date: September 13, 2013

Jeffrey DeRoberts, Syracuse and Nicholas E. Tishler, Niskayuna, for appellant.

Miller Mayer, LLP, Ithaca (R. James Miller of counsel), for respondent.

Pamela B. Bleiwas, Ithaca, attorney for the child.

Before: Rose, J.P., Spain, Garry and Egan Jr., JJ.


Spain, J.

Appeals (1) from two orders of the Family Court of Tompkins County (Sherman, J.), entered June 22, 2012 and July 10, 2012, which, among other things, dismissed petitioner's application, in two proceedings pursuant to Family Ct Act article 6, to modify a prior order of custody, and (2) from an order of said court, entered August 17, 2012, which denied petitioner's motion for reconsideration.

Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the divorced parents of a son, born in July 2010. The parties, who were married in 2009, separated in May 2011. They entered into a joint custody arrangement — with shared decision-making authority — contained in a separation agreement in December 2011, with physical placement with the mother and weekly parenting time with the father, which prohibited relocation of the child without the consent of the other parent or the court. Their agreement was later incorporated into, but not merged with, the parties' January 2012 judgment of divorce. In February 2012, just a few months after their agreement, the mother received and accepted an offer of employment in New Jersey. After the father denied his consent to allow the mother to relocate with the child from the City of Ithaca, Tompkins County to New Jersey, she commenced this proceeding requesting permission to relocate, to which the father cross-petitioned, objecting to the relocation and seeking sole custody. Family Court permitted the mother to relocate with the then-18-month-old child on a temporary basis pending disposition of the proceeding, and she moved to East Windsor, New Jersey, approximately 230 miles (4½ hours) from Ithaca in March 2012. However, following a two-day fact-finding hearing in May 2012 at which the mother — then a recent law school graduate — appeared pro se, the court dismissed the mother's application and granted sole custody to the father. Thereafter, the mother made a motion to reconsider, which the court denied. The mother now appeals. [1]

The ultimate issue in any custody dispute is which arrangement suits the best interests of the child, that is, "it is the rights and needs of the child[] that must be accorded the greatest weight" (Matter of Tropea v Tropea, 87 N.Y.2d 727, 739 [1996]). In a relocation case, to determine a child's best interests, the court must consider several factors, such as "each parent's reasons for seeking or opposing the move, the quality of the relationships between the child and the [moving] and [non-moving] parents, the impact of the move on the quantity and quality of the child's future contact with the [non-moving] parent, the degree to which the [moving] parent's and child's life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the [non-moving] parent and child through suitable visitation arrangements" (id. at 740-741; see Matter of Scheffey-Hohle v Durfee, 90 A.D.3d 1423, 1425 [2011], appeal dismissed 19 N.Y.3d 876 [2-12]). These factors governing a relocation determination are not an exhaustive list and the court is expected to consider any other relevant factors (see Matter of Herman v Villafane, 9 A.D.3d 525, 526-527 [2004]; Thompson v Smith, 277 A.D.2d 520, 521 [2000]). It is the party seeking to relocate who bears the burden of demonstrating, by a preponderance of the credible evidence, that such a move is in the child's best interests (see Scott VV. v Joy VV., 103 A.D.3d 945, 946 [2013], lv denied 21 N.Y.3d 909 [2013]; Matter of Kirshy-Stallworth v Chapman, 90 A.D.3d 1189, 1190 [2011]; DeLorenzo v DeLorenzo, 81 A.D.3d 1110, 1111 [2011], lv dismissed 16 N.Y.3d 888 [2011]). On review, this Court will not disrupt a relocation determination unless it lacks a sound and substantial basis in the record (see Rose v Buck, 103 A.D.3d 957, 958 [2013]; Matter of Feathers v Feathers, 95 A.D.3d 1622, 1623 [2012]). Finally, given Family Court's unique opportunity to hear and assess the testimony, its credibility determinations are accorded great deference on appeal (see Eschbach v Eschbach, 56 N.Y.2d 167, 173 [1982]; Matter of Pizzo v Pizzo, 94 A.D.3d 1351, 1352 [2012]; Matter of Sofranko v Stefan, 80 A.D.3d 814, 815 [2011]).

The mother's primary reason for seeking the relocation is that she was reportedly only able to find employment in her field in New Jersey. The mother initially attended law school in the midwest and then finished her final year at Cornell University in 2011. In February 2012, the mother was offered and accepted a position as a law clerk for a New Jersey judge. According to the mother, the full-time clerkship — which was scheduled to end in September 2013 — involves regular daytime hours and she is allowed 14 days of sick time and 14 days of vacation per year. Her salary was set at $43, 000 annually.

While the mother testified that she took the only employment offer extended to her and, thus, she had no choice but to relocate, there is little evidence in the record regarding her job search in the area surrounding the parties' former marital home in Ithaca, either before her clerkship or upon its anticipated completion. She submitted evidence of her email account, which showed various correspondence relating to her search for employment. However, these records did not indicate that any of the jobs she applied for were in the Ithaca area and, furthermore, she could not specifically remember any positions that she had applied for locally. The father submitted evidence to support his position that the mother's reason for relocating — that this was her only job offer — was a pretense and that she never intended to remain in the Ithaca area. He introduced a list that the mother had left in the marital home after she moved out, which included the following goals: "getting a job" and "moving out of NY, " and he testified that the mother had consistently been talking about relocating to New Jersey.

The father opposed the relocation mainly because it greatly reduced the amount of time that he had with the child and because a parallel move by him would not be feasible. He is employed as an assistant professor of mechanical and aerospace engineering at Cornell. Initially, he was offered a three-year position; at the expiration of that term, he received a one-year extension that was set to expire in June 2013, and he expected to be reappointed for another three-year term as an associate professor. He stated that while tenure was not guaranteed, he did not want to leave Cornell where he is paid $108, 220 annually, and that it would be difficult to find a similar position. He presented the testimony of a colleague in the same department who testified that faculty positions in the father's field are relatively rare and that there are only a handful of openings in the United States each year.

As to the father's parenting time, he was granted every other weekend in the temporary order, which he faithfully exercised. That order required the parties to exchange the child in a central location in Pennsylvania; however, the exchanges were fraught with tension for everyone involved, so the parents altered the arrangement so that the father would pick the child up on Friday in New Jersey and the mother would pick him up on Sunday in Ithaca. Despite this new arrangement, the difficulties continued, and the mother conceded that this arrangement was "not good for" anyone in the family, and that the long drives were exhausting and put the child at risk.

The testimony of both parents reflected that each had a loving relationship with the child. The mother testified that she had been the child's primary caregiver from the beginning. The child was born in the summer prior to the mother's third year in law school, and she testified that she thereafter took care of him almost all of the time except when she was studying or in class. During the fall semester, the maternal grandmother stayed with the family to help care for the child and did so while the father was at work and the mother was involved with her school work. After the grandmother left, the parents hired a nanny to watch the child until he started attending day care in January 2011. The mother testified that the child had special dietary needs and that she made the bulk of his food herself, and that she bathed and dressed him daily and potty-trained him. Additionally, she testified that the father did not participate in the child's life, specifically ...

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