Jelani PP. v. Melissa QQ.

193 A.D.3d 1299

147 N.Y.S.3d 709

In the Matter of JELANI PP., Appellant,

v.MELISSA QQ., Respondent.

530686

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

Calendar Date: March 10, 2021

Decided and Entered: April 29, 2021

Tracy Steeves, Kingston, for appellant.

Daniel Gartenstein, Kingston, attorney for the child.

Before: Egan Jr., J.P., Aarons, Pritzker, Reynolds Fitzgerald and Colangelo, JJ.

MEMORANDUM AND ORDER

Egan Jr., J.P.

Appeal from an order of the Family Court of Ulster County (McGinty, J.), entered October 16, 2019, which dismissed petitioner's application, in a proceeding pursuant to Family Ct Act article 6, to modify a prior order of custody and visitation.

Petitioner (hereinafter the father), who resides in Florida, and respondent (hereinafter the mother), who resides in New York, are the parents of a child (born in 2009). Pursuant to a July 2016 custody order, entered on consent, Family Court granted the parents joint legal custody of the child, the mother primary physical custody of the child and the father specified parenting time during holidays and the child's spring and summer school vacations. In July 2018, the father commenced this custody modification proceeding seeking primary physical custody of the child, alleging that the mother failed to, among other things, adequately provide for the child's educational well-being. Following a fact-finding hearing, Family Court continued the award of joint legal custody, with the mother maintaining primary physical placement of the child, but modified the order to provide for, among other things, expanded parenting time for the father during the child's summer vacation. Family Court also directed that there be weekly telephone communication between the father and the child, directed that the child may fly as an unaccompanied minor to the father's home in Florida and required the mother to notify the father of the child's medical appointments and to text him on a weekly basis in the event that the child is absent or tardy from school. The father appeals, contending that Family Court's order is not supported by a sound and substantial basis in the record.

Initially, we note that, despite being treated as such by Family Court, the father's modification petition is not technically a relocation application inasmuch as he was not the primary custodian of the child pursuant to the July 2016 custody order. However, inasmuch as "the practical effect of granting the father's request for modification of custody would be [the] relocation of the child[,] relocation must be considered within that framework" ( Matter of Adam OO. v. Jessica QQ., 176 A.D.3d 1418, 1419, 113 N.Y.S.3d 288 [2019] [internal quotation marks, brackets and citation omitted]). The father, therefore, was required to demonstrate a change in circumstances, which would then warrant an inquiry into whether modification of the existing custody order was necessary to further the best interests of the child, with the proposed relocation being one of the factors for the court to consider in making its best interests determination (see id. ; Matter of Zwack v. Kosier, 61 A.D.3d 1020, 1022–1023, 876 N.Y.S.2d 717 [2009], lv denied 13 N.Y.3d 702, 2009 WL 2622099 [2009] ).

The record demonstrates that, since July 2016, the child has had a significant number of absences from school and regularly arrived late while in the mother's care, a fact that the mother blamed on not having a vehicle and the ensuing difficultly in balancing her work schedule with the child's school schedule. Following the 2015–2016 school year, the child had to repeat first grade and an individualized education program was implemented to address her special education needs. Notwithstanding this fact, during the 2016–2017 school year, the child tallied an additional 12 absences and 16 late arrivals and, during the 2017–2018 school year, she had 25 absences and 32 late arrivals. Accordingly, given our independent review of the record (see Matter of Matthew DD. v. Amanda EE., 187 A.D.3d 1382, 1383, 134 N.Y.S.3d 512 [2020] ), we find that the child's attendance history and the potential negative impact on her educational well-being constituted a change in circumstances warranting an inquiry into the best interests of the child (see Matter of Audreanna VV. v. Nancy WW., 158 A.D.3d 1007, 1009, 71 N.Y.S.3d 683 [2018] ; Matter of William EE. v. Christy FF., 151 A.D.3d 1196, 1198, 55 N.Y.S.3d 818 [2017] ; Matter of Menhennett v. Bixby, 132 A.D.3d 1177, 1179, 18 N.Y.S.3d 475 [2015] ).

Turning to the best interests analysis, the father's concerns regarding the mother's ability to provide for the child's educational needs are justified given the child's poor performance at school, her special education needs and her documented school attendance issues. Notwithstanding, upon consideration of all of the relevant factors, including "maintaining stability in the child[ ]’s li[fe], the quality of [the] respective home environments, the length of time the present custody arrangement has been in place, each parent's past performance, relative fitness and ability to provide for and guide the child[ ]’s intellectual and emotional development" ( Matter of Kelly CC. v. Zaron BB., 191 A.D.3d 1101, 1103, 141 N.Y.S.3d 559 [2021] [internal quotation marks and citations omitted]), the degree to which the child's life may be enhanced emotionally and educationally if she were to move to Florida, as well as "the feasibility of preserving the relationship between the noncustodial parent and child through suitable [parenting time] arrangements" ( Matter of Tropea v. Tropea, 87 N.Y.2d 727, 741, 642 N.Y.S.2d 575, 665 N.E.2d 145 [1996] ; see Matter of Latoya B. v. Marvin D., 191 A.D.3d 1123, 1124, 141 N.Y.S.3d 185 [2021] ), we find that Family Court's decision is supported by a sound and substantial basis in the record.

The evidence at the fact-finding hearing established that both parents have a loving relationship with the child, provide safe and appropriate homes, are employed and financially capable of providing for the child's well-being and have taken an active role in her upbringing. The primary issue of concern is the mother's failure to adequately provide for the child's educational needs by ensuring that she regularly and consistently both attends school and arrives on time....