Opinion
2014-05-29
In the Matter of Brittany JONES, Appellant, v. Ernesto SORIANO, Respondent.
Randolph Kruman, Cortland, for appellant. Stone & Stone, Vestal (Michelle E. Stone of counsel), for respondent.
Randolph Kruman, Cortland, for appellant. Stone & Stone, Vestal (Michelle E. Stone of counsel), for respondent.
Sarah Loughran, Binghamton, attorney for the child.
Before: STEIN, J.P., McCARTHY, ROSE and EGAN JR., JJ.
ROSE, J.
Appeal from an order of the Family Court of Broome County (Connerton, J.), entered October 29, 2012, which dismissed petitioner's application, in a proceeding pursuant to Family Ct. Act article 6, to modify a prior order of custody.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the unmarried parents of one child (born in 2010). Following the birth of the child, the couple resided together and, working opposite schedules, shared in her care. They separated in March 2011 and, in August 2011, pursuant to a stipulated order, agreed to joint legal custody, primary physical custody with the mother and parenting time with the father every other weekend from 12:00 p.m. on Saturday to 4:00 p.m. on Sunday.
In January 2012, when the mother and father had both been unemployed for a year, the mother approached the father and asked him about moving to Florida with her, the child and the child's maternal grandmother, as the mother had been offered employment there. The father agreed and the parties left for Florida but, days later, the father decided against the move and returned to New York. Upon his return, the father commenced a custody proceeding, among others, and the mother then, among other things, commenced this proceeding to allow her to relocate. Following a hearing, Family Court dismissed the mother's petition for relocation. The mother now appeals.
We affirm. The parent seeking to relocate with a child bears the burden to demonstrate, by a preponderance of the credible evidence, that the relocation would be in the best interests of the child ( see Matter of Stetson v. Feringa, 114 A.D.3d 1089, 1090, 981 N.Y.S.2d 207 [2014];Matter of Scheffey–Hohle v. Durfee, 90 A.D.3d 1423, 1425, 935 N.Y.S.2d 718 [2011],appeal dismissed19 N.Y.3d 876, 947 N.Y.S.2d 49, 969 N.E.2d 1165 [2012] ). Factors to be considered in making such a determination 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 [non-moving] parent, the degree to which the [moving] 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 [non-moving] parent and child through suitable visitation arrangements' ” (Matter of Rose v. Buck, 103 A.D.3d 957, 958, 962 N.Y.S.2d 356 [2013], quoting Matter of Sniffen v. Weygant, 81 A.D.3d 1054, 1055, 916 N.Y.S.2d 320 [2011],appeals dismissed16 N.Y.3d 886, 923 N.Y.S.2d 414, 947 N.E.2d 1193 [2011],17 N.Y.3d 884, 933 N.Y.S.2d 640, 957 N.E.2d 1142 [2011];see Matter of Tropea v. Tropea, 87 N.Y.2d 727, 740–741, 642 N.Y.S.2d 575, 665 N.E.2d 145 [1996] ). Family Court is in the best position to make factual findings and credibility determinations and, therefore, its decision will not be disturbed when it is supported by a sound and substantial basis in the record ( see Matter of Stetson v. Feringa, 114 A.D.3d at 1090, 981 N.Y.S.2d 207;Matter of Rose v. Buck, 103 A.D.3d at 958, 962 N.Y.S.2d 356).
Here, the testimony established that both parents were committed and had an emotional bond with the child, and Family Court found that, despite transportation challenges, the father had exercised most of his visitation time. While the mother's desire to relocate to Florida in an effort to create economic opportunity is admirable, the record demonstrates that, at the time of the hearings, she was working as a hotel desk agent at slightly higher than minimumwage. While there was further testimony that the child enjoyed certain recreational opportunities and attended a local day care there, the record as a whole fails to establish “that relocation would substantially enhance the child's economic, emotional or educational well-being” (Matter of Scheffey–Hohle v. Durfee, 90 A.D.3d at 1428, 935 N.Y.S.2d 718;see Matter of Stetson v. Feringa, 114 A.D.3d at 1091, 981 N.Y.S.2d 207;Matter of Rose v. Buck, 103 A.D.3d at 961, 962 N.Y.S.2d 356).
Furthermore, the record supports Family Court's conclusion that relocation would have a negative impact on the quality and quantity of the child's future contact with the father, particularly in light of the parties' limited resources ( see Matter of Rose v. Buck, 103 A.D.3d at 960–961, 962 N.Y.S.2d 356;Matter of Munson v. Fanning, 84 A.D.3d 1483, 1485, 922 N.Y.S.2d 613 [2011] ). Despite the mother's insistence that she would endeavor to provide the father with the same number of total hours of visitation each year, there is no doubt that he would be deprived of “ ‘regular and meaningful access to his child and, more to the point, that [the child] no longer will benefit from his consistent presence in her life’ ” (Matter of Rose v. Buck, 103 A.D.3d at 960–961, 962 N.Y.S.2d 356, quoting Matter of Scheffey–Hohle v. Durfee, 90 A.D.3d at 1427, 935 N.Y.S.2d 718).
ORDERED that the order is affirmed, without costs. STEIN, J.P., McCARTHY and EGAN JR., JJ., concur.