Celinda JJ. v. Adrian JJ.

198 A.D.3d 1203

157 N.Y.S.3d 144

In the Matter of CELINDA JJ., Respondent,

v.ADRIAN JJ., Appellant.

530660

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

Calendar Date: September 8, 2021

Decided and Entered: October 28, 2021

Pamela B. Bleiwas, Ithaca, for appellant.

Christian J. Root, Vestal, for respondent.

Joan E. Mencel, Endwell, attorney for the children.

Before: Garry, P.J., Clark, Aarons, Reynolds Fitzgerald and Colangelo, JJ.

MEMORANDUM AND ORDER

Clark, J. Appeal from an order of the Family Court of Broome County (Pines, J.), entered October 2, 2019, which granted petitioner's application, in a proceeding pursuant to Family Ct Act article 6, for custody of the parties’ children.

Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the parents of four children (born in 2011, 2012, 2015 and 2017). On June 12, 2019, the father was sentenced to an aggregate prison term of 15 years for his convictions of rape in the first degree – a crime that he perpetrated against the mother – and rape in the third degree – a crime that he perpetrated against another female. That same day, the mother commenced this proceeding seeking permission to relocate with the children to South Carolina. In July 2019, in resolution of a separate Family Ct Act article 6 proceeding brought by the children's paternal grandmother, Family Court denied the paternal grandmother custody of and visitation with the children, granted the mother sole legal and primary physical custody of the children and directed that the mother's relocation petition be scheduled for a hearing.¹ Following that hearing, at which the father declined to testify, Family Court granted the mother's request to relocate to South Carolina with the children and directed that the father could send the children letters four times per year, with such letters subject to the mother's review. The father appeals, arguing that Family Court's determination is not supported by a sound and substantial basis in the record.

A custodial parent's proposed relocation provides the change in circumstances that is ordinarily required to modify an existing custody order (see Matter of Anthony F. v. Kayla E., 191 A.D.3d 1108, 1108–1109, 141 N.Y.S.3d 782 [2021], lv denied 37 N.Y.3d 901, 2021 WL 2151726 [2021] ; Matter of Kristen MM. v. Christopher LL., 182 A.D.3d 658, 659, 122 N.Y.S.3d 699 [2020] ; Matter of Michael BB. v. Kristen CC., 173 A.D.3d 1310, 1311, 104 N.Y.S.3d 726 [2019] ). The parent seeking permission to relocate with the children bears the burden of establishing, by a preponderance of the evidence, that the proposed relocation is in the best interests of the children (see Matter of Tropea v. Tropea, 87 N.Y.2d 727, 741, 642 N.Y.S.2d 575, 665 N.E.2d 145 [1996] ; Matter of Lynk v. Ehrenreich, 158 A.D.3d 1004, 1005, 71 N.Y.S.3d 203 [2018], lv denied 31 N.Y.3d 909, 2018 WL 2920944 [2018] ). In determining whether the best interests of the children are served by relocating with the custodial parent, courts must consider a variety of factors, including "each parent's reasons for seeking or opposing the move, the quality of the relationships between the child[ren] and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the child[ren]’s future contact with the noncustodial parent, the degree to which the custodial parent's and [the] child[ren]’s li[ves] may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and [the] child[ren] through suitable [parenting time] arrangements" ( Matter of Tropea v. Tropea, 87 N.Y.2d at 740–741, 642 N.Y.S.2d 575, 665 N.E.2d 145 ; see Matter of Hammer v. Hammer, 163 A.D.3d 1208, 1209, 81 N.Y.S.3d 614 [2018] ). "Given Family Court's superior position ‘to make factual findings and credibility determinations, its decision will not be disturbed if supported by a sound and substantial basis in the record’ " ( Matter of Barner v. Hampton, 132 A.D.3d 1098, 1099, 18 N.Y.S.3d 199 [2015], quoting Matter of Cowper v. Vasquez, 121 A.D.3d 1341, 1342, 995 N.Y.S.2d 319 [2014], lv denied 24 N.Y.3d 913, 2015 WL 144997 [2015] ).

The mother testified that she and the children live in a two-bedroom apartment in Broome County, that she is trained and employed as a licensed practical nurse and that, as a single parent, she has to regularly work overtime to pay for day care and household expenses. The mother stated that, following her rape and the father's subsequent arrest and conviction for that crime, she received little help from the children's paternal grandparents, who lived nearby, but that she received and relied upon increased support from the children's maternal grandparents, who traveled from South Carolina to assist with child care and to provide emotional support during the father's legal proceedings.² The hearing evidence established that the mother's primary motivation for relocating to South Carolina was her desire to be closer to the maternal grandparents, who, according to the mother, had offered to provide housing and free child care. The mother testified that, with free child care, she would not have to work overtime, which would enable her to spend more time with the children and pursue a registered nursing degree. The mother stated that she had reached her maximum earning capacity as a licensed practical nurse in Broome County and that she would have a greater earning potential were she to become a registered nurse. With respect to housing, the mother testified that the...