In the Matter of Jeanne A. Turvin, appellant,
Edward Joseph D'Agostino, respondent. (Proceeding No. 1) In the Matter of Edward Joseph D'Agostino, respondent, Jeanne A. Turvin, appellant. (Proceeding No. 2) Docket Nos. V-10795-03/15F, V-10795-03/15G
Murphy, Huntington, NY, for appellant.
Marjorie G. Adler, Garden City, NY, for respondent.
M. Albala, Hicksville, NY, attorney for the child.
M. LEVENTHAL, J.P., L. PRISCILLA HALL, SYLVIA O. HINDS-RADIX,
JOSEPH J. MALTESE, JJ.
DECISION & ORDER
by the mother from two orders of the Family Court, Nassau
County (Ellen R. Greenberg, J.), both dated June 30, 2016.
The first order, after a hearing, in effect, denied the
mother's amended petition for permission to relocate with
the parties' child to Middletown, New York. The second
order granted that branch of the father's cross petition
which was to modify a prior order of custody and visitation
of that court dated November 18, 2003, so as to award him
custody of the parties' child.
that the orders are reversed, on the facts and in the
exercise of discretion, without costs or disbursements, the
mother's amended petition for permission to relocate with
the parties' child to Middletown, New York, is granted,
that branch of the father's cross petition which was to
modify a prior order of custody and visitation dated November
18, 2003, so as to award him custody of the parties'
child is denied, and the matter is remitted to the Family
Court, Nassau County, to establish an appropriate visitation
schedule for the father.
modify an existing custody order, there must be a showing of
a change in circumstances such that modification is required
to protect the best interests of the child (see Matter of
Dezil v Garlick, 114 A.D.3d 773, 773; Matter of
O'Loughlin v Sweetland, 98 A.D.3d 983, 983;
Matter of Sparacio v Fitzgerald, 73 A.D.3d 790,
791). The best interests of the child must be determined by a
review of the totality of the circumstances (see Eschbach
v Eschbach, 56 N.Y.2d 167, 173-174). Factors to be
considered in determining issues of custody "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 Kreischer v Perry,
83 A.D.3d 841, 841; see Eschbach v Eschbach, 56
N.Y.2d at 172-173; Matter of Yu Chao Tan v Hong Shan
Kuang, 136 A.D.3d 933, 934). While not necessarily
determinative, the child's expressed preference is some
indication of what is in his or her best interests and, in
weighing that factor, a court must consider the age and
maturity of the child (see Eschbach v Eschbach, 56
N.Y.2d at 173; Matter of Ceballos v Leon, 134 A.D.3d
931, 932; Matter of Hall v Hall, 118 A.D.3d 879,
custodial parent's request to relocate "must be
considered 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 child" (Matter of Tropea v
Tropea, 87 N.Y.2d 727, 739). The relevant factors to be
considered include, but are 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" (id. at 740-741).
matters related to custody and relocation, the authority of
this Court is as broad as that of the hearing court, and the
hearing court's determination will not stand if it is not
supported by a sound and substantial basis in the record
(see Matter of Ceballos v Leon, 134 A.D.3d at 932;
Matter of Doyle v Debe, 120 A.D.3d 676, 680;
Matter of Cortez v Cortez, 111 A.D.3d 717, 717).
the Family Court's determination that the child's
best interests would not be served by relocating with the
mother to Middletown, New York, and would be served by
transferring custody to the father is not supported by a
sound and substantial basis in the record.
record establishes, inter alia, that although both parties
are loving and fit parents, the mother has been the
child's primary caretaker for all but less than one year
of the child's life, the child was 15 years old at the
time of the hearing, the child has established a primary
emotional attachment to the mother and expressed that she
wished to relocate to Middletown with the mother and the
mother's three younger children, and that the
mother's and child's life may be enhanced
economically by the move to Middletown.
the mother's relocation will have an impact upon the
father's ability to spend time with the child, the record
establishes that the father's contact with the child
throughout her life has been inconsistent, that Middletown is
only 1½ to 2 hours from the father's residence,
and that a liberal visitation schedule will allow for the
continuation of a meaningful relationship between the father
and the child, as well as between the child and the
father's younger children.
weighing the relevant factors, we find that the mother
established that the best interests of the child would be
served by permitting relocation to Middletown and that the
father failed to establish that a change of custody was in
the child's best interests (see Matter of Yu Chao Tan
v Hong Shan Kuang, 136 A.D.3d at 935 ; Matter of
Ceballos v Leon, 134 A.D.3d at 932; Matter of Hall v
Hall, 118 A.D.3d at 881-883).
the Family Court should have granted the mother's amended
petition for permission to relocate with the parties'
child to Middletown, and denied that branch of the
father's cross petition which was to modify the prior
order of custody ...