James TT. v. Shermaqiae UU.

184 A.D.3d 975

126 N.Y.S.3d 224

In the Matter of JAMES TT., Appellant,

v.SHERMAQIAE UU., Respondent.

(Proceeding No. 1.)

In the Matter of Shermaqiae UU., Respondent,

v.James TT., Appellant.

(Proceeding No. 2.)

528368

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

Calendar Date: May 18, 2020

Decided and Entered: June 18, 2020

Michelle I. Rosien, Philmont, for appellant.

Carolyn Snyder Lemmon, Albany, for respondent.

Alexandra G. Verrigni, Rexford, attorney for the child.

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

MEMORANDUM AND ORDER

Clark, J. Appeal from an order of the Family Court of Albany County (Walsh, J.), entered December 28, 2019, which, among other things, granted petitioner's application, in proceeding No. 2 pursuant to Family Ct Act article 6, for permission to relocate with the subject child.

Pursuant to an October 2017 order, James TT. (hereinafter the father) and Shermaqiae UU. (hereinafter the mother) had joint legal custody of their child (born in 2016), with the mother having primary physical custody and the father having parenting time at least two weekends per month from 9:00 a.m. on Saturday until 7:00 p.m. on Sunday and at such other and further times as the parents could agree. In January 2018, upon learning that the mother was thinking of relocating from Albany County to North Carolina to be with the child's ailing maternal grandmother, the father commenced the first of these proceedings, seeking to prevent the mother from relocating with the child. In February 2018, upon stipulation of the parties, Family Court entered an order permitting the mother to temporarily relocate to North Carolina with the child. The temporary order provided that the father was to receive parenting time as the parents could mutually agree and that, in the event that the mother did not return to New York with the child by May 31, 2018, either party could request that the matter be placed on the court's calendar for further proceedings.

In May 2018, the mother commenced the second of these proceedings, seeking permission to permanently relocate to North Carolina with the child. The father thereafter amended his petition to request primary physical custody of the child. Following a fact-finding hearing, Family Court found that it was in the child's best interests to relocate with the mother to North Carolina and, accordingly, granted the mother's petition and dismissed the father's petition. Family Court ordered, among other things, that the parents continue to share joint legal custody of the child, that the mother have primary physical custody and that, until the child reached school age, the father have 10 consecutive days of parenting time every other month, as well as one month in the summer and such other and further parenting time as the parents could agree.¹ The court further directed that the father was entitled to liberal phone communication with the child, including a video call each night before bed. The father appeals, arguing that a sound and substantial basis does not exist in the record to support Family Court's determination that relocation was in the child's best interests.²

A custodial parent's proposed relocation provides the change in circumstances that is ordinarily required to modify an existing custody order (see Matter of Rebekah R. v. Richard R., 176 A.D.3d 1340, 1341, 112 N.Y.S.3d 291 [2019] ; Matter of Michael BB. v. Kristen CC., 173 A.D.3d 1310, 1311, 104 N.Y.S.3d 726 [2019] ). The parent seeking to relocate a child's residence bears the burden of establishing, by a preponderance of the evidence, that the proposed relocation is in the child's best interests (see Tropea v. Tropea, 87 N.Y.2d 727, 741, 642 N.Y.S.2d 575, 665 N.E.2d 145 [1996] ; Matter of Hoffman v. Turco, 154 A.D.3d 1136, 1136, 62 N.Y.S.3d 609 [2017] ). In determining whether the proposed relocation is in the child's best interests, courts must consider, among other factors, "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 [parenting time] arrangements" ( Tropea v. Tropea, 87 N.Y.2d at 740–741, 642 N.Y.S.2d 575, 665 N.E.2d 145 ; see 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] ). Inasmuch as Family Court is in a superior position to evaluate witness testimony and credibility, we accord great deference to its determination and will not disturb it if supported by a sound and substantial basis in the record (see Matter of O'Hara v. DeMarsh, 161 A.D.3d 1271, 1272, 75 N.Y.S.3d 673 [2018] ; Matter of Emily GG. v. Tyler HH., 154 A.D.3d 1097, 1098, 62 N.Y.S.3d 575 [2017] ).

The mother testified that, as she was finishing up credits for a criminal justice degree in December 2017, she was terminated from her hourly employment, was unable to pay her living expenses and was on the verge of being evicted from her one-bedroom apartment. The mother testified that she had lost her employment because she had to frequently call out of work when the child was sick and could not attend day care. The mother stated that she could not rely on the father to provide backup child care in the event that the child was sick, stating that she would often ask him for help and that he rarely provided such help. The mother also testified that she did not have any family in the area who could help with child care.

The mother testified that, in North Carolina, she would be better able to provide financially for the child and would have greater familial support. The mother testified that the child's maternal grandmother and maternal aunt lived in North Carolina and that, although in poor health, the maternal grandmother was able to help with child care. She stated that she had secured salaried employment in North Carolina and, given her salary and the lower cost of living, was able to afford a two-bedroom apartment and more easily provide for the child's needs. Sh...