Opinion
900 CAF 17–01608
10-05-2018
In the Matter of Tahja M. EASON, Petitioner–Appellant, v. Gerrod T. BOWICK, Sr., Respondent–Respondent.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF COUNSEL), FOR PETITIONER–APPELLANT. PAUL B. WATKINS, FAIRPORT, ATTORNEY FOR THE CHILD.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF COUNSEL), FOR PETITIONER–APPELLANT.
PAUL B. WATKINS, FAIRPORT, ATTORNEY FOR THE CHILD.
PRESENT: SMITH, J.P., CARNI, NEMOYER, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by vacating the third ordering paragraph, and as modified the order is affirmed without costs.
Memorandum: Petitioner mother appeals from an order that, inter alia, denied the mother's relocation petition and directed that the mother not relocate with the subject child outside of Monroe County without court approval or express written consent from respondent father. We conclude that Family Court properly determined that the mother failed to establish by a preponderance of the evidence that it was in the best interests of the child to relocate to North Carolina (see generally Matter of Tropea v. Tropea , 87 N.Y.2d 727, 738–741, 642 N.Y.S.2d 575, 665 N.E.2d 145 [1996] ). The mother testified at a hearing on the petition that she had already moved to North Carolina. Her primary motivation for moving was a new job that provided a better salary and benefits and more reasonable hours than her previous job, and provided tuition assistance that would allow her to finish her undergraduate degree in nursing and subsequently pursue a Master's degree. At the time of the trial, however, the mother had resigned from that position. She testified that she would be permitted to reapply for that position and that such application would be given priority, but she provided no additional evidence in support of that claim. Nor did the mother provide additional evidence in support of her claim that a comparable position could not be found within Monroe County (see Matter of Yaddow v. Bianco , 115 A.D.3d 1338, 1339, 984 N.Y.S.2d 250 [4th Dept. 2014] ). The mother also "failed to establish that the child's life would be enhanced economically, emotionally and educationally by the proposed relocation" ( Matter of Shepherd v. Stocker , 159 A.D.3d 1441, 1442, 73 N.Y.S.3d 693 [4th Dept. 2018] [internal quotation marks omitted]; see Matter of Hill v. Flynn , 125 A.D.3d 1433, 1434, 3 N.Y.S.3d 249 [4th Dept. 2015], lv denied 25 N.Y.3d 910, 2015 WL 3618843 [2015] ). Moreover, the evidence presented at the hearing supports the court's determination that the proposed relocation would have a detrimental impact on the child's relationship with the father (see Shepherd , 159 A.D.3d at 1442, 73 N.Y.S.3d 693 ). We therefore conclude that the court's determination to deny the mother's relocation petition has a sound and substantial basis in the record, and we see no reason to disturb it (see Matter of Ramirez v. Velazquez , 91 A.D.3d 1346, 1347, 937 N.Y.S.2d 504 [4th Dept. 2012], lv denied 19 N.Y.3d 802, 2012 WL 1538354 [2012] ).
We reject the mother's contention that the court was biased in favor of the father and improperly acted as his legal advisor. Here, the father appeared pro se throughout the proceedings and, at times, appeared confused with respect to whether he needed merely to oppose the mother's relocation petition, or whether he had the burden of establishing that he should continue to have physical custody of the child, which had been granted to the father pursuant to a temporary order. During the proceedings, the father made an oral request for custody of the child, and the court told the father that he needed to file a custody petition if he was in fact seeking custody. We conclude that, in so doing, the court did not "improperly assume[ ] the role of advocate for the [father]" ( Matter of Veronica P. v. Radcliff A. , 126 A.D.3d 492, 492, 2 N.Y.S.3d 799 [1st Dept. 2015], lv denied 25 N.Y.3d 911, 2015 WL 3618922 [2015] ), but rather properly sought "to make reasonable efforts to facilitate the ability of [an] unrepresented litigant[ ] to have [his] matters fairly heard" ( 22 NYCRR 100.3 [B][12] ).
We agree with the mother, however, that court erred in including a provision in the order that transferred primary physical custody of the child from the mother to the father in the event that the mother relocates outside of Monroe County, and we therefore modify the order accordingly. Such a provision, "while possibly never taking effect, impermissibly purports to alter the parties' custodial arrangement automatically upon the happening of a specified future event without taking into account the child['s] best interests at that time" ( Grant v. Grant , 101 A.D.3d 1711, 1712, 957 N.Y.S.2d 530 [4th Dept. 2012] [internal quotation marks omitted]; see Matter of Brzozowski v. Brzozowski , 30 A.D.3d 517, 518, 817 N.Y.S.2d 127 [2d Dept. 2006] ). We reject the mother's further contention that the appropriate remedy for including that provision in an otherwise valid order is vacatur of the order in its entirety (see generally Grant , 101 A.D.3d at 1712, 957 N.Y.S.2d 530 ).