Squillini v. Tomasovich

213 A.D.3d 943

182 N.Y.S.3d 652 (Mem)

In the Matter of Justin SQUILLINI, respondent,

v.Tara TOMASOVICH, appellant.

(Proceeding No. 1)

In the Matter of Tara N. Tomasovich, appellant,

v.Justin R. Squillini, respondent.

(Proceeding No. 2)

2022–03054

Docket Nos. V–1232–20, V–2709–20

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

Submitted—February 3, 2023

February 22, 2023

Hegge & Confusione, LLC, New York, NY (Michael Confusione of counsel), for appellant.

Strauss Kallus Dumais PLLC, Goshen, NY (Barbara J. Strauss of counsel), for respondent.

Donald M. Card, Jr., Shelter Island, NY, attorney for the child.

BETSY BARROS, J.P., JOSEPH J. MALTESE, JOSEPH A. ZAYAS, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Orange County (Lori Currier Woods, J.), entered March 16, 2022. The order, insofar as appealed from, after a hearing, in effect, granted that branch of the father's petition which was for sole physical custody of the parties’ child, and denied those branches of the mother's petition which were for sole physical custody of the child and, in effect, for permission to relocate with the child to Arizona.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

The parties married in 2017 and have one child together, born in October 2018. The parties separated in November 2019, and in 2020, each party filed a petition seeking custody of the child. The mother also, in effect, requested permission to relocate with the child to Arizona. After a hearing, the Family Court, inter alia, awarded sole physical custody of the child to the father and, in effect, denied those branches of the mother's petition which were for sole physical custody of the child and, in effect, for permission to relocate with the child to Arizona. The mother appeals.

"The paramount concern in any custody dispute is the best interests of the child" ( Matter of Velez v. Chandiramani, 183 A.D.3d 752, 753, 121 N.Y.S.3d 678 ; see Matter of Martinez v. Flores, 189 A.D.3d 1414, 1414, 134 N.Y.S.3d 768 ). That inquiry requires an evaluation of various factors, including the parents’ past performance, fitness, ability to maintain a stable home environment, and respective willingness to foster a positive relationship between the child and the other parent (see Eschbach v. Eschbach, 56 N.Y.2d 167, 172, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ; Matter of Goodman v. Jones, 146 A.D.3d 884, 885, 45 N.Y.S.3d 192 ). "[T]he existence or absence of any one factor in determining custody cannot be determinative on appellate review since the court is to consider the totality of the circumstances" ( Matter of Martinez v. Flores, 189 A.D.3d at 1415, 134 N.Y.S.3d 768 [internal quotation marks omitted]; see Eschbach v. Eschbach, 56 N.Y.2d at 171, 174, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ). As any determination with regard to custody turns in large part on the assessment of the credibility, character, temperament, and sincerity of the parties, the hearing court's determination should not be disturbed unless it lacks a sound and substantial basis in the record (see Matter of Martinez v. Flores, 189 A.D.3d at 1415, 134 N.Y.S.3d 768 ; Matter of Goodman v. Jones, 146 A.D.3d at 886, 45 N.Y.S.3d 192 ).

"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" ( Quinn v. Quinn, 134 A.D.3d 688, 689, 20 N.Y.S.3d 427 ; see Matter of Francis–Miller v. Miller, 111 A.D.3d 632, 635, 975 N.Y.S.2d 74 ). In determining whether a proposed move is in a child's best interests, courts are "free to consider and give appropriate weight to all of the factors that may be relevant to the determination" ( Matter of Tropea v. Tropea, 87 N.Y.2d 727, 740, 642 N.Y.S.2d 575, 665 N.E.2d 145 ). In the context of an initial custody determination, however, the strict application of the factors relevant to a relocation petition...