Bailey v. Ayoub

203 A.D.3d 1043

162 N.Y.S.3d 761 (Mem)

In the Matter of Kevin Robert BAILEY, respondent,

v.Anna M. AYOUB, appellant.

(Proceeding No. 1)

In the Matter of Anna M. Ayoub, appellant,

v.Kevin Robert Bailey, respondent.

(Proceeding No. 2)

2021–00238

Docket Nos. V–3614–18/20D/20E/20F

Supreme Court, Appellate Division, Second Department, New York.

Submitted—February 22, 2022

March 23, 2022

Kelli M. O'Brien, Goshen, NY, for appellant.

Larkin Ingrassia, LLP, Newburgh, NY (Theresa R. Cayton of counsel), for respondent.

Keith G. Ingber, Thompson Ridge, NY, attorney for the child.

MARK C. DILLON, J.P., COLLEEN D. DUFFY, FRANCESCA E. CONNOLLY, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Orange County (Victoria B. Campbell, J.), dated December 10, 2020. The order, insofar as appealed from, after a hearing, granted the father's petition to modify an order of custody dated November 9, 2018, to the extent of awarding the father additional parental access with the parties’ child, and denied the mother's cross petition to modify the order of custody dated November 9, 2018, to allow her to relocate with the subject child to North Carolina.

ORDERED that the order dated December 10, 2020, is affirmed insofar as appealed from, without costs or disbursements.

The parties are the parents of a child, born in 2013. In an order dated November 9, 2018 (hereinafter the 2018 order), the parties were awarded joint legal custody of the child, the mother was awarded physical custody of the child, and the father was awarded parental access with the child. By petition dated May 1, 2020, the father sought to modify the 2018 order so as to award the parties joint physical custody of the child. The father alleged that the mother had brought the child to North Carolina on March 17, 2020, and that she had since refused to return to New York. By cross petition dated June 1, 2020, the mother sought permission to relocate to North Carolina so that she could live with her then fiance´, now husband. After a hearing, the Family Court, in an order dated December 10, 2020, inter alia, granted the father's modification petition to the extent of awarding him additional parental access with the child and denied the mother's cross petition to relocate with the child to North Carolina. The mother appeals.

"A parent seeking to relocate with a child bears the burden of establishing by a preponderance of the evidence that the proposed relocation would be in the child's best interest" ( Matter of Jose v. Guilford, 188 A.D.3d 1209, 1210, 136 N.Y.S.3d 401 [internal quotation marks omitted]; see Matter of Wells v. Dellago, 195 A.D.3d 625, 626, 144 N.Y.S.3d 640 ). "In determining whether the proposed relocation is in the child's best interests, courts may consider and give appropriate weight to all of the factors that may be relevant to the determination" ( Matter of Jose v. Guilford, 188 A.D.3d at 1210, 136 N.Y.S.3d 401 [internal quotation marks omitted]). "These factors include, but are certainly not limited to each parent's reasons for seeking or opposing the [relocation], the quality of the relationship[ ] 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 [the] child through suitable [parental access] arrangements" ( Matter of Tropea v. Tropea, 87 N.Y.2d 727, 740–741, 642 N.Y.S.2d 575, 665 N.E.2d 145 ; see Matter of Wells v. Dellago, 195 A.D.3d at 626, 144 N.Y.S.3d 640 ; Matter of Jose v. Guilford, 188 A.D.3d at 1210, 136 N.Y.S.3d 401 ). "[N]o single factor should be treated as dispositive or given such disproportionate weight as to predetermine the outcome" ( Matter of Tropea v. Tropea, 87 N.Y.2d at 738, 642 N.Y.S.2d 575, 665 N.E.2d 145 ).

Here, contrary to the mother's contention, the Family Court's determination that the child's best interests would not be served by relocating to North Carolina with the mother is supported by a sound and substantial basis in the record (see Matter of Wells v. Dellago, 195 A.D.3d at 626, 144 N.Y.S.3d 640 ). The mother failed to establish that the relocation to North Carolina would enhance the child's life socially or educationally, that the move would not have a negative impact on the quality of the child's future contact with the father, or that, if she relocated, it would be feasible to preserve the relationship between the father and the child through suitable parental access arrangements (see id. at 626–627, 144 N.Y.S.3d 640 ; Matter of Jose v. Guilford, 188 A.D.3d at 1210, 136 N.Y.S.3d 401 ; Matter of Follini v. Currie, 176 A.D.3d 1203, 1205, 113 N.Y.S.3d 260 ; Matter of Karen H. v. Maurice G., 101 A.D.3d 1005, 1007, 956 N.Y.S.2d 154 ; Matter of McBryde v. Bodden, 91 A.D.3d 781, 782, 936 N.Y.S.2d 292 ). Accordingly, the Family Court properly denied the mother's cross petition for permission to relocate with the child to North Carolina.

"In order to modify an existing court-ordered custody or parental access arrangement, there must be a showing that there has been a change in circumstances such that modification is required to protect the best interests of the child" ( Matter of Langenau v. Hargrove, 198 A.D.3d 650, 651, 156 N.Y.S.3d 37 ). "Since the Family Court's determination with respect to custody and parental access depends to a great extent upon its assessment of the credibility of the witnesses and upon the character, temperament, and sincerity of the parties, its findings are generally accorded great deference and will not be disturbed unless they lack a sound and substantial basis in the record" ( id. at 651–652, 156 N.Y.S.3d 37 ; see Matter of Bullard v. Clark, 154 A.D.3d 846, 847, 62 N.Y.S.3d 189 )....