Atwell, East Hampton, NY, for appellant.
M. Jansen, White Plains, NY, for respondent.
J. Peck, Harrison, NY, attorney for the children.
E. CHAMBERS, J.P., SANDRA L. SGROI, COLLEEN D. DUFFY, BETSY
DECISION & ORDER
by the mother from an order of the Family Court, Westchester
County (Hal B. Greenwald, J.), entered October 22, 2015. The
order, insofar as appealed from, after a hearing, denied the
mother's petition, in effect, to modify the parties'
judgment of divorce so as to award her sole custody of the
subject children or, in the alternative, to prevent the
father from relocating with the subject children to Florida.
that the order is affirmed insofar as appealed from, without
costs or disbursements.
parties were married and have two children together. After
the parties separated and the mother relocated to North
Carolina, the father petitioned for sole custody of the
children, which was granted by the Family Court in July 2012.
The July 2012 custody order provided for liberal unsupervised
visitation between the mother and the children, including
during holidays and over the summers and for daily telephone
and weekly video communication between each parent and the
children when the children were with the other parent. The
parties were divorced by a judgment dated November 22, 2013,
which incorporated, but did not merge, the terms of the July
2012 custody order, as well as a stipulation between the
parties increasing the mother's visitation time over the
August 2013, the father notified the mother of his intention
to relocate with the children to Florida. In February 2014,
the mother relocated to New York and filed a petition seeking
a modification of the judgment of divorce so as to award her
sole custody of the children or, in the alternative, to
prevent the father from relocating to Florida with the
children. Thereafter, in June 2014, the mother moved by order
to show cause seeking, inter alia, to enjoin the father's
relocation with the children. The mother's request for a
stay of the relocation was initially granted by the Family
Court, but later vacated. A hearing on the mother's
petition was then held after the father and children had
relocated to Florida. Following the hearing, the court denied
the mother's petition. The mother appeals.
modification of an existing custody arrangement is sought,
the petitioner must make a showing that there has been a
change in circumstances such that modification is necessary
to protect the best interests of the children (see Matter
of Scott v Powell, 146 A.D.3d 964, 965; Matter of
Lao v Gonzales, 130 A.D.3d 624, 624-625; Matter of
Lombardi v Valenti, 120 A.D.3d 817, 818; Matter of
Cisse v Graham, 120 A.D.3d 801, 801, affd 26
N.Y.3d 1103; Abbott v Abbott, 96 A.D.3d 887, 888).
When the modification requested relates to the relocation of
the children, the court must consider the relocation "
on its own merits with due consideration of all the relevant
facts and circumstances and with predominant emphasis being
placed on what outcome is most likely to serve the best
interests of the [children]. While the respective rights of
the custodial and noncustodial parents are unquestionably
significant factors that must be considered... it is the
rights and needs of the children that must be accorded the
greatest weight'" (Abbott v Abbott, 96
A.D.3d at 888, quoting Matter of McBryde v Bodden,
91 A.D.3d 781, 781-782 [internal quotation marks omitted];
see Matter of Caruso v Cruz, 114 A.D.3d 769, 771;
Miller v Pipia, 297 A.D.2d 362, 365-366).
considering the issue of relocation, the court must determine
"whether it has been established by a preponderance of
the evidence that a proposed relocation would serve the
child's best interests" (Matter of Tropea v
Tropea, 87 N.Y.2d 727, 741; see Matter of Caruso v
Cruz, 114 A.D.3d at 771; Matter of Davis v
Ogden, 109 A.D.3d 539, 539; Miller v Pipia, 297
A.D.2d at 365-366). The factors to be considered
"include, but are certainly not limited to each
parent's reasons for seeking or opposing the move, the
quality of the relationships between the child and the
custodial and noncustodial parents, the impact of the move on
the quantity and quality of the child's future contact
with the noncustodial parent, the degree 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 the relationship between the
noncustodial parent and child through suitable visitation
arrangements" (Matter of Tropea v Tropea, 87
N.Y.2d at 740-741). The court's determination as to the
relocation of the children must be supported by a sound and
substantial basis in the record (see Matter of Caruso v
Cruz, 114 A.D.3d at 771-772).
sound and substantial basis supported the Family Court's
determination, and the father established that the relocation
to Florida was in the best interests of the children (see
Matter of Caruso v Cruz, 114 A.D.3d at 772; Matter
of Hamed v Hamed, 88 A.D.3d 791, 792).
mother's remaining contentions are without merit.
CHAMBERS, J.P., SGROI, DUFFY and ...