Gartner
v.
Reed

Not overruled or negatively treated on appealinfoCoverage
Supreme Court, Appellate Division, Fourth Department, New York.Nov 9, 2017
63 N.Y.S.3d 779 (N.Y. App. Div. 2017)

1167 CAF 16-01509.

11-09-2017

In the Matter of Glenn A. GARTNER, Petitioner–Respondent, v. Kera H. REED, Respondent–Appellant. Roger B. Williams, Attorney for the Child, Appellant.

Amdursky, Pelky, Fennell & Wallen, P.C., Oswego (Courtney S. Radick of Counsel), for Respondent–Appellant. Roger B. Williams, Attorney for the Child, Syracuse, Appellant Pro Se. Lisa Dipoala Haber, Syracuse, for Petitioner–Respondent.


Amdursky, Pelky, Fennell & Wallen, P.C., Oswego (Courtney S. Radick of Counsel), for Respondent–Appellant.

Roger B. Williams, Attorney for the Child, Syracuse, Appellant Pro Se.

Lisa Dipoala Haber, Syracuse, for Petitioner–Respondent.

PRESENT: WHALEN, P.J., CENTRA, LINDLEY, TROUTMAN, AND WINSLOW, JJ.

MEMORANDUM:

Petitioner father commenced this proceeding seeking custody of his child with respondent mother, and the mother and the Attorney for the Child (AFC) appeal from an order that, inter alia, granted sole legal and physical custody of the child to the father. We affirm. A year after the child was born, the parties stipulated that the mother would have sole legal and physical custody of the child, and the father shortly thereafter moved first to Delaware and then to New Jersey, where he currently resides. The mother, an admitted drug user who has been incarcerated for petit larceny, relied on her grandmother to care for the child and her four other children. Neglect proceedings were brought against the mother in 2015 based on her drug use, and the father sought custody of the child in May 2016.

Inasmuch as the father was not the custodial parent when he relocated to New Jersey and when he filed his petition seeking custody, we reject the contention of the mother and the AFC that Family Court should have applied the factors set forth in Matter of Tropea v. Tropea , 87 N.Y.2d 727, 740–741, 642 N.Y.S.2d 575, 665 N.E.2d 145 (1996), which defines "the scope and nature of the inquiry that should be made in cases where a custodial parent proposes to relocate and seeks judicial approval of the relocation plan" ( id. at 732, 642 N.Y.S.2d 575, 665 N.E.2d 145 [emphasis added]; see Matter of Daniel R. v. Liza R., 309 A.D.2d 714, 714, 766 N.Y.S.2d 182 [1st Dept.2003] ). As the court here properly recognized, however, the relocation of the child to New Jersey was an issue for it to consider in determining whether custody to the father was in the child's best interests (see Matter of Zwack v. Kosier, 61 A.D.3d 1020, 1022–1023, 876 N.Y.S.2d 717 [3d Dept.2009], lv. denied 13 N.Y.3d 702, 2009 WL 2622099 [2009] ). We afford great deference to the court's custody determination and decline to disturb it where, as here, it is supported by a sound and substantial basis in the record (see Matter of Ladd v. Krupp, 136 A.D.3d 1391, 1393, 24 N.Y.S.3d 834 [4th Dept.2016] ). The father inexcusably had no contact with the child once he moved away, and only recently regained contact with him around the time he sought custody of the child. Nevertheless, the father showed through his testimony that he wanted to remedy that absence and was prepared to care for the child, who lived with him for several weeks before the hearing began. We agree with the court that the fitness of the father, the quality of his home environment, and the parental guidance he would be able to provide for the child were superior to that of the mother (see generally Matter of O'Connell v. O'Connell, 105 A.D.3d 1367, 1367–1368, 963 N.Y.S.2d 789 [4th Dept.2013] ). We reject the contention of the mother and the AFC that the court erred in discounting the child's wishes. The child's wishes were simply a factor to consider, and the court concluded that the wishes of the 11–year–old child were not entitled to great weight where it appeared that they were due at least in part to the lack of discipline in the homes of the mother and grandmother (see generally Fox v. Fox, 177 A.D.2d 209, 211, 582 N.Y.S.2d 863 [4th Dept.1992] ).

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.