Megan NN. v. Michael NN.

210 A.D.3d 1357

178 N.Y.S.3d 805

In the Matter of MEGAN NN., Appellant,

v.MICHAEL NN., Respondent.

(Proceeding No. 1.)

In the Matter of Michael NN., Respondent,

v.Megan NN., Appellant.

(Proceeding No. 2.)

In the Matter of Megan NN., Appellant,

v.Michael NN., Respondent.

(Proceeding No. 3.)

535668

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

Calendar Date: October 11, 2022

Decided and Entered: November 23, 2022

Whiteman Osterman & Hanna LLP, Albany (Robert S. Rosborough IV of counsel), for appellant.

Hinman, Howard & Kattell, LLP, Binghamton (Katherine A. Fitzgerald of counsel), for respondent.

Norbert A. Higgins, Binghamton, attorney for the children.

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

MEMORANDUM AND ORDER

Clark, J. Appeals (1) from an order of the Family Court of Broome County (Mark H. Young, J.), entered June 27, 2022, 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 children, and (2) from an order of said court, entered June 27, 2022, which dismissed petitioner's application, in proceeding No. 3 pursuant to Family Ct Act article 6, to hold respondent in willful violation of a prior order of custody.

Michael NN. (hereinafter the father) and Megan NN. (hereinafter the mother) are the divorced parents of two children, a daughter (born in 2009) and a son (born in 2011). Pursuant to a judgment of divorce entered in December 2020 — which judgment incorporated three orders issued by Supreme Court during the pendency of the divorce action — the father was granted sole legal and physical custody of the children, while the mother was granted supervised parenting time as the parties may mutually agree. In March 2021, the mother filed a modification petition pursuant to Family Ct Act article 6, through which she sought joint legal custody and shared physical custody of the children. The mother also alleged that the father wanted to relocate to Portland, Oregon, and she alternatively sought an order preventing him from doing so, granting her sole legal and physical custody of the children, and removing the supervision requirement imposed upon her parenting time. In May 2021, the father filed an answer and cross petition seeking permission to relocate with the children to Portland.

After the commencement of a fact-finding hearing in September 2021, Family Court issued a temporary order granting the mother two specified periods of supervised parenting time per week. In November 2021, the father amended his modification petition alleging that he had received a job offer and requesting permission to relocate the children to Portland during the pendency of the hearing; such emergency relief was denied. The mother amended her modification petition in January 2022, seeking temporary custody of the children following the father's relocation to Portland earlier that month and the children being left in the care of the paternal grandparents; the court denied such relief. In April 2022, the mother filed a violation petition alleging that the children had traveled to Portland to visit the father for a week, causing her to miss parenting time.

Following an extended fact-finding hearing and a Lincoln hearing, Family Court issued an order finding that the best interests of the children were served by allowing them to continue to reside with the father, granting his relocation petition and dismissing the mother's modification petition. The court also issued a separate order dismissing the mother's violation petition. The mother appeals from both orders.¹

"The proposed relocation of a custodial parent provides the requisite change in circumstances required for Family Court to consider whether a modification of the existing custody order serves the best interests of the children" ( Matter of Anthony F. v. Kayla E., 191 A.D.3d 1108, 1108–1109, 141 N.Y.S.3d 782 [3d Dept. 2021] [citations omitted], lv denied 37 N.Y.3d 901, 2021 WL 2151726 [2021] ; see Matter of BB. Z. v. CC. AA., 166 A.D.3d 1334, 1335, 88 N.Y.S.3d 637 [3d Dept. 2018] ). "The parent seeking to relocate bears the burden of demonstrating, by a preponderance of the evidence, that the proposed relocation is in the children's best interests" ( Matter of Kristen MM. v. Christopher LL., 182 A.D.3d 658, 659, 122 N.Y.S.3d 699 [3d Dept. 2020] [internal quotation marks, brackets and citations omitted]; see Matter of Michael BB. v. Kristen CC., 173 A.D.3d 1310, 1311, 104 N.Y.S.3d 726 [3d Dept. 2019] ). "In assessing the children's best interests, Family Court must consider the totality of the circumstances, including each parent's reasons for seeking or opposing the move, the quality of the relationships between the children and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the children's future contact with the noncustodial parent, the degree to which the custodial parent's and children's lives may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and the children through suitable visitation arrangements" ( Matter of Rebekah R. v. Richard R., 176 A.D.3d 1340, 1341, 112 N.Y.S.3d 291 [3d Dept. 2019] [internal quotation marks, brackets and citations omitted]; see Matter of Anwar RR. v. Robin RR., 196 A.D.3d 756, 757, 151 N.Y.S.3d 214 [3d Dept. 2021] ).

The mother's opposition to the move was primarily due to the physical distance it would place between her and the children. However, the record reveals that as a result of her struggles with alcohol addiction, the mother has been absent from the children's lives for extended periods. When she has been present, the mother has placed the children in uncomfortable and unsafe situations. For example, during one instance, the mother became so intoxicated during her parenting time that she became unconscious, and the children had to seek the help of a neighbor to have the father retrieve them. During another instance, the mother consumed alcohol and drove with the son in the vehicle, resulting in her most recent of four arrests for driving while intoxicated. The children retain such memories, causing them a lot of trepidation about spending time with the mother. While the mother claimed that her latest period of sobriety — approximately 17 months by the conclusion of the hearing — was different than the prior three rehabilitative programs she had completed, the record revealed that she had made similar claims before and previously maintained sobriety for up to two years, only to relapse.

The record also established that the father has been the primary custodian of the children since 2013, and that the children share a very close bond with him and with the father's significant other (hereinafter the wife).² When the wife completed a doctoral program in psychology, she was offered a job in Portland, and the father sought to relocate to Portland with the children. During the pendency of the hearing, the father — who has never received financial assistance from the mother to support the children — received a job offer in Portland that would double his salary. Despite the children's hesitation about spending time with the mother, the father encouraged electronic communication between the mother and the children, and he facilitated visits whenever the children desired them, including transporting the children and paying for a supervisor. The father testified that if he were permitted to relocate with the children, he would continue to facilitate such visits by transporting the children for the mother's parenting time in New York and by arranging parenting time for the mother anytime she visited Portland.

In granting the father's relocation petition, Family Court emphasized the strength of the relationship between the father and the children. Recognizing, as we must, the great deference that we accord Family Court's factual findings (see Matter of Tiffany W. v. James X., 196 A.D.3d 787, 792, 151 N.Y.S.3d 225 [3d Dept. 2021] ), the record reveals that the father, as the children's primary caretaker, has been able to provide them with stability, while the mother has been a sporadic and, at times, traumatic presence in their lives (see Matter of Kristen MM. v. Christopher LL., 182 A.D.3d at 661, 122 N.Y.S.3d 699 ; Matter of BB. Z. v. CC. AA., 166 A.D.3d at 1336, 88 N.Y.S.3d 637 ). By the conclusion of the hearing, the mother had made some progress rebuilding her relationship with the daughter, and the children's wishes, although not dispositive, were appropriately considered by Family Court (see Matter of Shirreece AA. v. Matthew BB., 195 A.D.3d 1085, 1091, 149 N.Y.S.3d 657 [...