Thomas v. Mobley

206 A.D.3d 743

170 N.Y.S.3d 172

In the Matter of Shara THOMAS, respondent,

v.Arnold MOBLEY, appellant.

2020–06449

Docket No. V–3294–15

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

Submitted—May 17, 2022

June 8, 2022

Heather A. Fig, Bayport, NY, for appellant.

Darla A. Filiberto, Islandia, NY, for respondent.

Paraskevi Zarkadas, Centereach, NY, attorney for the child.

FRANCESCA E. CONNOLLY, J.P., JOSEPH J. MALTESE, PAUL WOOTEN, LARA J. GENOVESI, JJ.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Suffolk County (Victoria R. Gumbs–Moore, Ct. Atty. Ref.), dated January 21, 2020. The order, after a hearing, granted the mother's petition to modify an order of the same court dated April 30, 2015, so as to permit her to relocate with the parties’ child to Georgia, and directed that the father have parenting time with the child in Georgia on 10 days’ notice to the mother, that the mother make the child available for parenting time with the father in New York at least two weeks per year, and that the child continue to participate in the father's family reunion and other vacation plans with the child's brothers.

ORDERED that the order dated January 21, 2020, is modified, on the law, by deleting the provisions thereof directing that the father have parenting time with the child in Georgia on 10 days’ notice to the mother, that the mother make the child available for parenting time with the father in New York at least two weeks per year, and that the child continue to participate in the father's family reunion and other vacation plans with the child's brothers; as so modified, the order dated January 21, 2020, is affirmed, without costs or disbursements, and the matter is remitted to the Family Court, Suffolk County, for further proceedings consistent herewith.

The parties have one child together, who was born in July 2008. In an order dated April 30, 2015 (hereinafter the custody order), which was entered upon the agreement of the parties, the parties were awarded joint legal custody of the child, the mother was awarded residential custody, and the father was awarded parenting time. The custody order specified that neither party was permitted to relocate with the child outside of Nassau or Suffolk Counties without consent of the other party or of the court. By petition dated March 12, 2019, the mother sought to modify the custody order so as to permit her to relocate with the child to Georgia. Following a hearing, the Family Court granted the mother's petition and directed that the father have parenting time with the child in Georgia on 10 days’ notice to the mother, that the mother make the child available for parenting time with the father in New York at least two weeks per year, and that the child continue to participate in the father's family reunion and other vacation plans with the child's brothers. The father appeals.

"Modification of an existing custody arrangement is permissible only upon a showing that there has been a change in circumstances such that modification is necessary to ensure the best interests of the child" ( Matter of Argila v. Edelman, 174 A.D.3d 521, 523, 106 N.Y.S.3d 71 [internal quotation marks omitted]; see Assad v. Assad, 200 A.D.3d 831, 833–834, 161 N.Y.S.3d 92 ; Matter of Banks v. DeLeon, 174 A.D.3d 598, 599, 101 N.Y.S.3d 885 ). "Before subjecting children and their parents to additional litigation, courts require that, before a full hearing is ordered, the parent seeking a change of custody must make an evidentiary showing of a change in circumstances demonstrating a need to conduct a full hearing into whether a change of custody is appropriate in order to insure the child's best interests" ( Matter of Newton v. McFarlane, 174 A.D.3d 67, 76–77, 103 N.Y.S.3d 445 ). "In determining whether such a change has occurred, the court should consider the totality of the circumstances" ( id. at 77, 103 N.Y.S.3d 445 ).

Contrary to the mother's contentions, she was required to establish a change in circumstances, as the parties agreed in the underlying custody proceeding that neither would relocate out of Nassau or Suffolk Counties without permission (see id. at 76–77, 103 N.Y.S.3d 445 ; see also Assad v. Assad, 200 A.D.3d at 833–834, 161 N.Y.S.3d 92 ). Although the Family Court failed to articulate a determination on the issue of a change in circumstances prior to holding a hearing on the petition, this Court may make its own findings because "this Court's authority is as broad as that of the hearing court" and the record is sufficient to permit review ( Matter of Newton v. McFarlane, 174 A.D.3d at 80, 103 N.Y.S.3d 445 ).

Here, the mother demonstrated a change in circumstances, providing a sufficient basis to conduct a hearing. She presented evidence that, since the custody order was issued, the safety in her neighborhood had declined, requiring her to move to protect the child's safety, which led to a drastic increase in her living expenses. She also presented evidence that she had a job opportunity in Georgia with a higher salary than what she could earn in New York and that her living expenses would be lower in Georgia than they were in New York. The mother thus demonstrated that a full hearing was warranted to determine whether her proposed relocation was in the child's best interests (see id. at 76–77, 103 N.Y.S.3d 445 ).

"[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 at 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...