Kates v. Simpson

180 A.D.3d 1043

120 N.Y.S.3d 414

In the Matter of Patricia KATES, Respondent,

v.Dexter SIMPSON, Appellant.

2019–05488

Docket No. V–7796–17

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

Argued - January 16, 2020

February 26, 2020

Steven P. Forbes, Jamaica, NY, for appellant.

Towers & Associates, P.C., Brooklyn, N.Y. (Geanine Towers of counsel), for respondent.

Karen P. Simmons, Brooklyn, N.Y. (Laura Solecki and Janet Neustaetter of counsel), attorney for the child.

REINALDO E. RIVERA, J.P., MARK C. DILLON, ROBERT J. MILLER, BETSY BARROS, JJ.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Kings County (Nisha Menon, Ct. Atty. Ref.), dated April 16, 2019. The order, after a hearing, granted the mother's petition to modify a prior order of custody dated July 28, 2016, so as to award her sole legal and residential custody of the parties' child and to permit her to relocate the child to Georgia.

ORDERED that the order dated April 16, 2019, is affirmed, without costs or disbursements.

The mother and the father are the parents of one child born in 2006. In 2016, following the execution of a stipulation between the parties, the Family Court issued an order dated July 28, 2016, awarding sole legal and residential custody of the child to the father. On March 9, 2017, the mother filed a petition seeking to modify the prior order of custody so as to award her sole legal and residential custody of the child and to permit her to relocate the child to Georgia. After a hearing, the court granted the mother's petition. The father appeals.

To modify an existing custody order, there must be a showing of a change in circumstances such that modification is necessary to ensure the continued best interests of the child (see Matter of Newton v. McFarlane, 174 A.D.3d 67, 103 N.Y.S.3d 445 ; Matter of Riedel v. Riedel, 61 A.D.3d 979, 876 N.Y.S.2d 907 ), under the totality of the circumstances (see Eschbach v. Eschbach, 56 N.Y.2d 167, 172, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ).

A request to relocate a child constitutes a change in circumstances, requiring the parent seeking to move to demonstrate that relocating the child is in the child's best interests (see Matter of Dockery v. Reid–O'Garro, 161 A.D.3d 1147, 1148, 77 N.Y.S.3d 480 ; Martin v. Martin, 139 A.D.3d 916, 917–918, 33 N.Y.S.3d 303 ; Matter of Adams v. Bracci, 91 A.D.3d 1046, 1047, 936 N.Y.S.2d 738 ). In considering the issue of relocation, "the courts should be free to consider and give appropriate weight to all of the factors that may be relevant to the determination. These factors include, but are certainly 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" ( Matter of Tropea v. Tropea, 87 N.Y.2d 727, 740–741, 642 N.Y.S.2d 575, 665 N.E.2d 145 ). "[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 ).

Since weighing the...