Opinion
2012-04-27
In the Matter of Scott HOLTZ, Petitioner–Respondent, v. Kathryn WEAVER, Respondent–Appellant.In the Matter of Kathryn Weaver, Petitioner–Appellant, v. Scott Holtz, Respondent–Respondent.
Wagner & Hart, LLP, Olean (Janine Fodor of Counsel), for Respondent–Appellant And Petitioner–Appellant. Emily A. Vella, Springville, for Petitioner–Respondent and Respondent–Respondent.
Wagner & Hart, LLP, Olean (Janine Fodor of Counsel), for Respondent–Appellant And Petitioner–Appellant. Emily A. Vella, Springville, for Petitioner–Respondent and Respondent–Respondent. Bert R. Dohl, Attorney for The Child, Salamanca, for Hayley H.
PRESENT: CENTRA, J.P., PERADOTTO, SCONIERS, AND MARTOCHE, JJ.
MEMORANDUM:
Respondent-petitioner mother appeals from an order that, inter alia, denied her cross petition seeking to modify the custody and visitation provisions of the judgment of divorce by granting permission for the parties' child to relocate with her to Florida. We affirm. “A parent seeking permission for a child to relocate with him or her has the burden of establishing by a preponderance of the evidence that the proposed relocation is in the child's best interests” ( Matter of Murphy v. Peace, 72 A.D.3d 1626, 1626, 899 N.Y.S.2d 493; see Matter of Tropea v. Tropea, 87 N.Y.2d 727, 741, 642 N.Y.S.2d 575, 665 N.E.2d 145). In assessing a parent's request to relocate, the relevant factors include “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” ( Tropea, 87 N.Y.2d at 740–741, 642 N.Y.S.2d 575, 665 N.E.2d 145).
Here, we conclude that the Referee properly considered the factors set forth in Tropea and determined that the mother did not meet her burden of establishing that the proposed relocation is in the child's best interests ( see Matter of Webb v. Aaron, 79 A.D.3d 1761, 1761, 913 N.Y.S.2d 847; Murphy, 72 A.D.3d at 1626–1627, 899 N.Y.S.2d 493; Matter of Seyler v. Hasfurter, 61 A.D.3d 1437, 877 N.Y.S.2d 722). Although the mother's reason for moving, i.e., to assist in caring for the ill maternal grandfather, is valid, our “primary focus must be on the best interests of the child [ ]” ( Matter of Confort v. Nicolai, 309 A.D.2d 861, 861, 766 N.Y.S.2d 63; see Tropea, 87 N.Y.2d at 738–739, 642 N.Y.S.2d 575, 665 N.E.2d 145). The Referee determined that the mother failed to establish that the lives of the mother and the child would be “enhanced economically [or] educationally by the move” ( Tropea, 87 N.Y.2d at 741, 642 N.Y.S.2d 575, 665 N.E.2d 145), and that determination has a sound and substantial basis in the record ( see Webb, 79 A.D.3d at 1761, 913 N.Y.S.2d 847; Murphy, 72 A.D.3d at 1626–1627, 899 N.Y.S.2d 493).
The Referee also properly determined that the child's relationship with petitioner-respondent father would be adversely affected by the proposed relocation ( see Matter of Ramirez v. Velazquez, 91 A.D.3d 1346, 1347, 937 N.Y.S.2d 504; Webb, 79 A.D.3d at 1761–1762, 913 N.Y.S.2d 847; Seyler, 61 A.D.3d 1437, 877 N.Y.S.2d 722). “While the relocation of a child outside of the geographic area where the noncustodial parent resides is not presumptively against the child's best interests, ‘the impact of the move on the relationship between the child and the noncustodial parent will remain a central concern’ ” ( Matter of Dukes v. McPherson, 50 A.D.3d 1529, 1530, 857 N.Y.S.2d 391, quoting Tropea, 87 N.Y.2d at 739, 642 N.Y.S.2d 575, 665 N.E.2d 145). Here, the Referee found that the child and the father have a strong relationship and that the father is very active in the child's life, and the Referee expressed “grave doubts about the parties' ability to sustain the quality of the father-daughter relationship if [the child] relocates to Florida.” Although the Attorney for the Child indicated to the Referee that the child wished to move to Florida, the Referee properly concluded that the child's wishes are not determinative ( see Matter of Marino v. Marino, 90 A.D.3d 1694, 1695–1696, 935 N.Y.S.2d 818; Matter of Thomas v. Thomas, 79 A.D.3d 1829, 1830, 913 N.Y.S.2d 456), particularly in light of her young age ( see Matter of Seymour v. Seymour, 267 A.D.2d 1053, 701 N.Y.S.2d 568, lv. denied 95 N.Y.2d 761, 714 N.Y.S.2d 711, 737 N.E.2d 953; Matter of Graci v. Graci, 187 A.D.2d 970, 973, 590 N.Y.S.2d 377; Fox v. Fox, 177 A.D.2d 209, 211, 582 N.Y.S.2d 863).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.