Rebekah R. v. Richard R.

176 A.D.3d 1340

112 N.Y.S.3d 291

In the Matter of REBEKAH R., Respondent,

v.RICHARD R., Appellant.

527021

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

Calendar Date: September 12, 2019

Decided and Entered: October 17, 2019

Rural Law Center of New York, Castleton (Kristin A. Bluvas of counsel), for Appellant.

Dennis Laughlin, Cherry Valley, for Respondent.

Larisa Obolensky, Delhi, attorney for the Children.

Before: Garry, P.J., Clark, Mulvey and Pritzker, JJ.

MEMORANDUM AND ORDER

Clark, J. Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the parents of two children (born in 2011 and 2013). Pursuant to an October 2016 custody order, entered upon consent, the parents shared joint legal custody of the children, with the mother having primary physical custody and the father having parenting time as he and the mother could reasonably agree. In November 2017, the mother commenced this modification proceeding seeking permission to relocate out of state with the children. Following a fact-finding hearing, at which only the mother and the father testified, Family Court granted the mother's petition, ordered that the father continue to have parenting time with the children "as the parties may reasonably agree[,] with a minimum period of time to be established by the parties," and directed that, to the extent not modified, all other terms set forth in the October 2016 custody order remain in full force and effect. The father appeals, primarily arguing that Family Court's determination to permit the mother to relocate with the children is not supported by a sound and substantial basis in the record.

The "custodial parent's proposed relocation provides the change in circumstances that is ordinarily necessary to modify an existing custody order" ( Matter of BB.Z. v. CC.AA., 166 A.D.3d 1334, 1335, 88 N.Y.S.3d 637 [2018] ; accord Matter of Michael BB. v. Kristen CC., 173 A.D.3d 1310, 1311, 104 N.Y.S.3d 726 [2019] ; see Matter of Perestam v. Perestam, 141 A.D.3d 757, 757–758, 38 N.Y.S.3d 273 [2016] ). In such cases, the burden falls on the parent seeking permission to relocate with the children to establish, by a preponderance of the evidence, that the proposed move is in the best interests of the children (see Matter of Hoppe v. Hoppe, 165 A.D.3d 1422, 1423, 86 N.Y.S.3d 252 [2018], lvs denied 32 N.Y.3d 912, 913, 93 N.Y.S.3d 258, 259, 117 N.E.3d 817, 818 [2019]; Matter of Hempstead v. Hyde, 144 A.D.3d 1438, 1439, 42 N.Y.S.3d 412 [2016] ). 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 child[ren] and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the child[ren]'s future contact with the noncustodial parent, the degree to which the custodial parent's and child[ren]'s li[ves] may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and the child[ren] through suitable visitation arrangements’ " ( Matter of Michael BB. v. Kristen CC., 173 A.D.3d at 1311, 104 N.Y.S.3d 726, quoting Matter of Tropea v. Tropea, 87 N.Y.2d 727, 740–741, 642 N.Y.S.2d 575, 665 N.E.2d 145 [1996] ). We accord great deference to Family Court's custody modification determinations, given that it is in a superior position to evaluate testimony and assess witness credibility and, thus, we will not disturb such a determination if supported by a sound and substantial basis in the record (see Matter of Lynk v. Ehrenreich, 158 A.D.3d 1004, 1005, 71 N.Y.S.3d 203 [2018], lv denied 31 N.Y.3d 909, 2018 WL 2920944 [2018] ; Matter of Teri v. Elliott, 122 A.D.3d 1092, 1093, 997 N.Y.S.2d 165 [2014] ).

The evidence established that the mother became unemployed shortly before the hearing, when the store at which she was employed as a supervisor closed. The evidence also demonstrated that the mother's limited education and employment history, having worked within the home for several years, made it difficult for her to find work in or around her rural town. The mother testified that her employment prospects were further limited by a lack of child care, as she did not have nearby family members that could help her, and the father's family no longer spoke to her. Photographic and testimonial evidence also demonstrated that the home in which the mother lived with the children and the children's two half siblings had sustained considerable water damage, which was causing the ceiling and floors to collapse, and that the home also suffered from a rodent infestation. The mother stated that, in addition to the significant safety and sanitation concerns posed by the home's condition, the state of the home also hindered the children socially because they were unable to invite friends over. The mother, who was receiving public assistance at the time of the hearing, testified that she did not have the financial means to remedy the unsafe and unsanitary conditions of the home and that, although he owned the home with her, the father had refused to assist with the necessary repairs. Rather, as acknowledged by the father during his testimony, the father had proposed that the mother find a "new man" to perform or pay for the repairs.

The mother testified that, given her dire living situation and financial state, she desired to relocate with the children to Phoenix, Arizona, where the children's maternal grandfather and step-grandmother, as well as other extended family, resided. She stated that Arizona presented greater employment and educational...