Pavon v. Perez

213 A.D.3d 674

182 N.Y.S.3d 277

In the Matter of Kelvin PAVON, respondent,

v.Desiree PEREZ, appellant.

(Proceeding No. 1)

In the Matter of Desiree M. Perez, appellant,

v.Kelvin S. Pavon, respondent.

(Proceeding No. 2)

2022-02097, 2022-02098, 2022-02099

Docket Nos. V-2029-20/21A, V-2029-20/21B, V-2029-20/21C

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

Submitted—January 9, 2023

February 1, 2023

Jan Murphy, Huntington, NY, for appellant.

Donald T. Rollock, Mineola, NY, for respondent.

Ronna L. DeLoe, Larchmont, NY, attorney for the child.

MARK C. DILLON, J.P., FRANCESCA E. CONNOLLY, CHERYL E. CHAMBERS, PAUL WOOTEN, JJ.

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 6, the mother appeals from two orders and a decision of the Family Court, Nassau County (Eileen C. Daly–Sapraicone, J.), all dated March 7, 2022. The first order, insofar as appealed from, upon the decision, made after a hearing, granted the father's petition to modify an order of the same court dated May 4, 2021, to the extent of prohibiting the mother from relocating with the parties’ child to a residence farther away from the father's residence than the child's current residence and directing that the mother's final decision-making authority concerning the child was subject to "consultation/discussion with the father." The second order, upon the decision, denied the mother's petition to modify the order dated May 4, 2021, so as to permit her to relocate with the child to Florida.

ORDERED the appeal from the decision is dismissed, without costs or disbursements, as no appeal lies from a decision (see Schicchi v. J.A. Green Constr. Corp., 100 A.D.2d 509, 472 N.Y.S.2d 718 ); and it is further,

ORDERED that the first order dated March 7, 2022, is affirmed insofar as appealed from, without costs or disbursements; and it is further,

ORDERED that the second order dated March 7, 2022, is affirmed, without costs or disbursements.

The parties, who were not married, have one child together. Pursuant to an order dated May 4, 2021, issued on consent, the parties were awarded joint legal custody of the child, with final decision-making authority to the mother, and the mother was awarded residential custody of the child, with parental access to the father. In August 2021, the father filed a petition to modify the order dated May 4, 2021, so as to award him sole legal and residential custody of the child. In September 2021, the mother filed a petition to modify the order dated May 4, 2021, so as to permit her to relocate with the child to Florida. In an order dated March 7, 2022, the Family Court, inter alia, granted the father's petition to the extent of prohibiting the mother from relocating with the child to a residence farther away from the father's residence than the child's current residence and directing that the mother's final decision-making authority concerning the child was subject to "consultation/discussion with the father." In a separate order, also dated March 7, 2022, the court denied the mother's petition. The mother appeals.

"In order to modify an existing court-ordered custody or parental access arrangement, there must be a showing that there has been a change in circumstances such that modification is required to protect the best interests of the child" ( Matter of Langenau v. Hargrove, 198 A.D.3d 650, 651, 156 N.Y.S.3d 37 ). "[A] parent seeking to relocate with a child bears the burden of establishing by a preponderance of the evidence that the proposed move would be in the child's best interests" ( Matter of Banks v. DeLeon, 174 A.D.3d 598, 599, 101 N.Y.S.3d 885 [internal quotation marks omitted]). "In determining whether relocation is appropriate, the court must consider a number of factors including ‘each parent's reasons for seeking or opposing the move, the quality of the relationships between the...