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In re Wood

Supreme Court of New York, Second Department

July 5, 2017

In the Matter of Justine E. Wood, respondent,
v.
Anthony Lozada, appellant. Docket No. V-27817-14

          Submitted Date: June 15, 2017

          D52837 M/htr

          Richard Cardinale, Brooklyn, NY, for appellant.

          Zvi Ostrin, New York, NY, for respondent.

          LEONARD B. AUSTIN, J.P. SYLVIA O. HINDS-RADIX COLLEEN D. DUFFY FRANCESCA E. CONNOLLY, JJ.

          DECISION & ORDER

         Appeal by the father from an order of the Family Court, Kings County (Lisa Aschkenasy, Ct. Atty. Ref), dated February 18, 2016. The order, upon a decision of that court, made after a hearing, granted the mother's petition for sole custody of the parties' child and, in effect, granted the mother permission to relocate with the child to Colorado. The notice of appeal from the decision is deemed to be a notice of appeal from the order (see CPLR 5512[a]).

         ORDERED that the order is modified, on the law and in the exercise of discretion, by adding a provision thereto awarding the father visitation with the child; as so modified, the order is affirmed, without costs or disbursements, and the matter is remitted to the Family Court, Kings County, for a determination of the terms of the father's visitation.

         The parties are the parents of one child, born in 2014. The mother filed a petition for sole custody of the child and subsequently requested permission to relocate with the child to Colorado. After a hearing, the Family Court granted the mother's petition and permitted her to relocate with the child to Colorado. The father appeals.

         When determining custody cases, the primary concern is the best interests of the child (see Eschbach v Eschbach, 56 N.Y.2d 167, 171; Friederwitzer v Friederwitzer, 55 N.Y.2d 89). "The factors to be considered in determining the custody arrangement that is in the child's best interests include 'the quality of the home environment and the parental guidance the custodial parent provides for the child, the ability of each parent to provide for the child's emotional and intellectual development, the financial status and ability of each parent to provide for the child, the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the child's relationship with the other parent'" (Matter of Islam v Lee, 115 A.D.3d 952, 953, quoting Matter of Miguel R. v Maria N., 104 A.D.3d 771, 772; see Matter of Francois v Hall, 73 A.D.3d 1055, 1055; Kaplan v Kaplan, 21 A.D.3d 993, 994-995). "The 'existence or absence of any one factor cannot be determinative on appellate review since the court is to consider the totality of the circumstances'" (Matter of McLennan v Gordon, 122 A.D.3d 742, 742, quoting Eschbach v Eschbach, 56 N.Y.2d at 174).

         A party seeking leave to relocate with a child bears the burden of establishing by a preponderance of the evidence that the proposed move would be in the child's best interests (see Matter of Ventura v Huggins, 141 A.D.3d 600; Matter of Caruso v Cruz, 114 A.D.3d 769, 771; Matter of Francis-Miller v Miller, 111 A.D.3d 632, 635). In determining whether a move is in a child's best interests, courts are free to consider and give appropriate weight to all of the factors that may be relevant to the determination, including, but 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 727, 740-741; see Matter of Nolan v Renda, 149 A.D.3d 839; Matter of Ventura v Huggins, 141 A.D.3d at 601; Matter of Caruso v Cruz, 114 A.D.3d at 772).

         Where the Family Court has conducted a complete evidentiary hearing, its credibility finding must be accorded great weight, and its award of custody will not be disturbed unless it lacks a sound and substantial basis in the record (see Matter of McLennan v Gordon, 122 A.D.3d at 742-743).

         Here, the Family Court's determination to award sole custody of the child to the mother has a sound and substantial basis in the record. The evidence at the hearing established that the mother had provided consistent care for the child despite undergoing financial difficulties and receiving little regular financial assistance from the father (see Matter of Islam v Lee, 115 A.D.3d at 953). In addition, by allowing the mother to relocate to Colorado, where she would live with the child's maternal grandmother and have financial and familial support that she does not have in New York, she will be able to provide the child with a stable and nurturing home environment. Accordingly, granting her permission to relocate with the child to Colorado was not an improvident exercise of the court's discretion and will not be disturbed (see Matter of Ventura v Huggins, 141 A.D.3d at 601; Matter of Acevedo v Acevedo, 200 A.D.2d 567, 568).

         However, the father should be awarded visitation with the child based upon a schedule and terms that are feasible in light of the mother's relocation to Colorado (see Matter ofHall v Clas,144 A.D.3d 801; Matter of Rivera v Cruz,143 A.D.3d 902; Matter of Eddington v McCabe,98 A.D.3d 613). Therefore, we remit the matter to the ...


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