Opinion
February 4, 1999
Appeal from the Family Court of Broome County (Hester, Jr., J.).
The parties have been married since 1984 and are the parents of three boys ages 12, 10 and 4. At issue in this proceeding is petitioner's March 1998 application for joint custody of the children and permission to relocate from Broome County to Florida. In the three-year period preceding the application, petitioner cared for the children in Broome County and respondent lived two hours away in Madison County where he worked as a dealer in a casino. During this time period, respondent made no effort to contact the boys on a regular basis and saw them very little, if at all, on the two weekdays he spent in Broome County working as a farmer. Following a hearing, Family Court, in a thoughtful and well-reasoned decision, granted petitioner sole custody "without directing her to remain in New York State". Respondent appeals.
While this matter cannot properly be characterized as a relocation case since it involves an initial custody determination ( see, Matter of Tropea v. Tropea, 87 N.Y.2d 727, 736; Matter of Roseboom v. Carreras, 254 A.D.2d 548, 549), petitioner's desire to move the children out of State was nevertheless a relevant factor to be considered by Family Court in connection with its "best interests" analysis ( see, Matter of Tropea v. Tropea, supra, at 739-740; Rolls v. Rolls, 243 A.D.2d 906, 907; Matter of Morlando v. Morlando, 240 A.D.2d 852, lv denied 91 N.Y.2d 802; Caganek v. Caganek, 233 A.D.2d 701). Indeed, the court quite properly took this fact into consideration in its determination awarding petitioner sole custody.
Upon our review of the record, we find that this challenged custodial determination, which rested largely on Family Court's resolution of credibility issues and its consideration of the nature and extent of visitation that respondent would lose in the event that petitioner was permitted to relocate, has a sound and substantial basis Family Court found respondent to be indifferent and uncommitted to his family, in that he offered little assistance to alleviate the family's dire financial problems, had a paramour in Canada with whom he visited regularly despite having little to no time to spend with his children, pursued contact with the children only upon being served with the application for custody, manifested impatience and irritation with the children when he did see them and failed to make adequate accommodations to facilitate future visitation.
Notably, those visits respondent did have with the children following petitioner's application for custody were brief and consisted of sleeping on the floor of a friend's living room. No evidence was offered that this arrangement would in any way improve if petitioner was ordered to remain in Broome County. As to respondent's professed desire to finally develop a meaningful relationship with his sons, Family Court, having the advantage of observing his demeanor at the hearing, found that "his words amount to lip service in the absence of a plan of action" and further noted that respondent "offer[ed] very few particulars on which it could base a visitation schedule if it were to direct the petitioner to remain in Broome County".
In contrast, petitioner has dedicated herself to the children and has always served as their primary caregiver with little input from respondent. She has been particularly devoted to the special needs of their eldest son who suffers from: attention deficit hyperactivity disorder. Having lost the marital residence in foreclosure, petitioner had no concrete living arrangements in Broome County as of the hearing. Her desire to relocate to Florida was not motivated by bad faith, but rather the opportunity to reside with an adult son and to secure flexible employment ( see, Tropea v. Tropea, 87 N.Y.2d 727, 740, supra). As to the children's attachment to respondent and the impact an out-of-State move would have on their relationship ( see, id.), the record reveals that respondent has not been involved in his children's lives on a full-time basis for years and they had grown accustomed to not seeing or having any contact with him for long periods of time. Under these circumstances, the record contains ample support for Family Court's finding that the children's best interests will be served by an award of sole custody to petitioner.
Cardona, P. J., Mercure, Yesawich Jr. and Graffeo, JJ., concur.
Ordered that the order is affirmed, without costs.