Picitelli v. Carbone

208 A.D.3d 582

172 N.Y.S.3d 714

In the Matter of Marisa E. PICITELLI, respondent,

v.Annunziato A. CARBONE, appellant.

(Proceeding No. 1)

In the Matter of Annunziato A. Carbone, appellant,

v.Marisa E. Picitelli, respondent.

(Proceeding No. 2)

2021–07103, 2021–07104

Docket Nos. V–05653–17/20A, B, C, D, V–06386–17/20A, B, C, D

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

Argued—June 24, 2022

August 10, 2022

Law Offices of Sandra M. Radna, P.C., Melville, NY, for appellant.

Mangi & Graham, LLP, Westbury, NY (James J. Graham, Jr., of counsel), for respondent.

Joy S. Bunch, Garden City, NY, attorney for the child.

FRANCESCA E. CONNOLLY, J.P., REINALDO E. RIVERA, DEBORAH A. DOWLING, HELEN VOUTSINAS, JJ.

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 6, the father appeals from two orders of the Family Court, Nassau County (Sharon N. Clarke, Ct. Atty. Ref.), both dated August 27, 2021. The first order, insofar as appealed from, after a hearing, granted the mother's petition to modify an order of custody and visitation dated September 12, 2017, so as to allow her to relocate with the subject child from Rockville Centre to Union, New Jersey, and denied the father's petition to modify the order of custody and visitation dated September 12, 2017, so as to award him sole legal and residential custody of the child. The second order, insofar as appealed from, awarded the same relief to the mother and set forth a schedule of parental access for the father.

ORDERED that the orders are affirmed insofar as appealed from, without costs or disbursements.

The parties have one child together, who was born in April 2017. In an order of custody and visitation dated September 12, 2017 (hereinafter the custody order), which was entered upon the consent of the parties, the parties were awarded joint legal custody of the child, the mother was awarded residential custody, and the father was awarded parental access.

By petition dated March 9, 2020, the mother filed a petition to modify the custody order so as to permit her to relocate with the child from Rockville Centre to Union, New Jersey. The mother's petition was adjourned several times to July 2020 as a result of the COVID–19 pandemic. In May 2020, at around the time the mother's lease for her apartment in Rockville Centre expired, the mother relocated, without leave of the court, to Union, New Jersey with the child.

The father filed a violation petition, contending that the mother had taken the child to New Jersey without permission from him or the Family Court, as well as a petition for a writ of habeas corpus seeking the return of the child to him. The court issued a writ of habeas corpus, which was thereafter marked satisfied. The father also filed an order to show cause and a petition seeking, inter alia, to modify the custody order so as to award him sole legal and residential custody of the child. The father contended that the mother's relocation with the child to New Jersey without his consent constituted a change in circumstances since entry of the custody order.

Following a hearing, the Family Court granted the mother's petition for permission to relocate with the child to Union, New Jersey, and awarded the father certain parental access. The court denied the father's petition to modify the custody order so as to award him sole legal and residential custody of the child, and awarded the mother sole residential and legal custody of the child. The court dismissed the father's violation petition as moot. The father 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 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’ " ( id. at 599, 101 N.Y.S.3d 885, quoting Matter of Tropea v. Tropea, 87 N.Y.2d 727, 740–741, 642 N.Y.S.2d 575, 665 N.E.2d 145 ). "Since custody determinations depend in large part on the trial court's assessment of the character and credibility of the parties and witnesses, that court's credibility findings are generally accorded deference, and its custody determinations will not be disturbed unless they lack a sound and substantial basis in the record" ( Matter of Banks v. DeLeon, 174 A.D.3d at 599, 101 N.Y.S.3d 885 [internal quotation marks omitted]).

Here, the Family Court's determination that it was not in the child's best interests to modify the custody order so as to award the father sole legal and residential custody has a sound and substantial basis in the record (see Matter of Vann v. Ballinger, 174 A.D.3d 725, 727, 102 N.Y.S.3d 483 ; Matter of Vargas v. Gutierrez, 155 A.D.3d 751, 753, 64 N.Y.S.3d 76 ). In addition, the mother established that relocating to Union, New Jersey in order to live together with her new husband, who worked in New Jersey, would enhance the child's life socially and provide the child with increased financial stability (see Matter of Tropea v. Tropea, 87 N.Y.2d at 740–741,...