Venusv.Brennan

Supreme Court, Appellate Division, Fourth Department, New York.Feb 1, 2013
958 N.Y.S.2d 821 (N.Y. App. Div. 2013)
958 N.Y.S.2d 821103 A.D.3d 11152013 N.Y. Slip Op. 610

2013-02-1

In the Matter of Maria M. VENUS, Petitioner–Appellant, v. Ryan BRENNAN, Respondent–Respondent.

D.J. & J.A. Cirando, Esqs., Syracuse (Elizabeth Dev. Moeller of Counsel), for Petitioner–Appellant. Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of Counsel), for Respondent–Respondent.



D.J. & J.A. Cirando, Esqs., Syracuse (Elizabeth Dev. Moeller of Counsel), for Petitioner–Appellant. Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of Counsel), for Respondent–Respondent.
Deborah A. Bellomo, Attorney for the Child, Syracuse, for Victoria E.B.

PRESENT: SMITH, J.P., PERADOTTO, CARNI, SCONIERS, AND WHALEN, JJ.



MEMORANDUM:


Petitioner mother commenced this proceeding seeking to modify the parties' joint custody order by granting the mother permission to relocate from Syracuse to the New York City area with the parties' child. Before the commencement of this proceeding, the parties stipulated that all proceedings seeking modification of the prior custody order would be determined by a referee or judicial hearing officer (stipulation), and thus a hearing on this matter was held before a referee. Following the hearing, Family Court, inter alia, denied the mother's petition seeking permission to relocate with the parties' child.

We agree with the mother that the court's determination lacks a sound and substantial basis in the record and that she met her burden of establishing by a preponderance of the evidence that the proposed relocation is in the child's best interests ( see Matter of Parish A. v. Jamie T., 49 A.D.3d 1322, 1323, 853 N.Y.S.2d 795;see generally Matter of Tropea v. Tropea, 87 N.Y.2d 727, 740–741, 642 N.Y.S.2d 575, 665 N.E.2d 145). Here, the mother established by a preponderance of the evidence that the relocation will benefit the child economically and emotionally inasmuch as the relocation will increase the mother's earning potential and will enable her to spend more time with the child. Additionally, the mother has agreed to maintain a visitation schedule that will foster the child's relationship with the father, to transport the child to and from Syracuse, and to pay any related transportation costs ( see Parish A., 49 A.D.3d at 1323, 853 N.Y.S.2d 795;see also Matter of Butler v. Hess, 85 A.D.3d 1689, 1690–1691, 926 N.Y.S.2d 240,lv. denied17 N.Y.3d 713, 2011 WL 4978944;Matter of Scialdo v. Cook, 53 A.D.3d 1090, 1092, 862 N.Y.S.2d 238). We therefore reverse the order insofar as it denied the mother's petition seeking permission to relocate with the child, and we remit the matter to Family Court to establish an appropriate visitation schedule for the father.

The mother further contends that the Attorney for the Child (AFC) was ineffective on the grounds that the AFC did not present any witnesses or submit any evidence at the hearing, did not advocate a position in her written closing argument and did not request a Lincoln hearing. We reject that contention. We conclude that, under the circumstances presented here, the failure of the AFC to present evidence at the hearing, without more, does not constitute ineffective assistance ( see Matter of Grabiel V., 59 A.D.3d 1132, 1133, 873 N.Y.S.2d 840,lv. denied12 N.Y.3d 711, 2009 WL 1309352). The AFC actively participated in the hearing by cross-examining the parties and witnesses, and there is no requirement that she submit a position in her written closing argument. Additionally, there is no indication that the AFC would have succeeded in obtaining a Lincoln hearing even had she requested one given the age of the child, who was five at the time of the hearing ( see generally Matter of Farnham v. Farnham, 252 A.D.2d 675, 677, 675 N.Y.S.2d 244).

Finally, the mother's contention that the Referee lacked jurisdiction to hear this matter because the mother was not represented by counsel when she signed the stipulation is without merit inasmuch as there is no requirement that she be represented when signing a stipulation ( see Matter of Stearns v. Stearns, 11 A.D.3d 746, 747, 783 N.Y.S.2d 686;see generally Gibson v. Gibson, 284 A.D.2d 908, 909, 726 N.Y.S.2d 195).

It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law without costs, the petition is granted, and the matter is remitted to Family Court, Onondaga County, for further proceedings.