Courten v. Courten

• Decision Date: 22 February 1983
• Citation: 92 A.D.2d 579,459 N.Y.S.2d 464
• Parties: . Carolyn COURTEN, Appellant. Supreme Court, Appellate Division, Second Department
• Court: New York Supreme Court — Appellate Division

Page 464

459 N.Y.S.2d 464

92 A.D.2d 579

Henry COURTEN, Respondent, v. Carolyn COURTEN, Appellant.

Supreme Court, Appellate Division Second Department.

Feb. 22, 1983.

Andrew Yankwitt, Carle Place, for appellant.

Willard H. DaSilva, Garden City, for respondent.

Before TITONE, J.P., and GULOTTA, WEINSTEIN and BRACKEN, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to section 651 of the Family Court Act, the mother appeals from an order of the Family Court, Suffolk County, entered August 16, 1982, which, after a hearing, modified certain provisions of the judgment of divorce (1) to award sole custody of the parties' child to the petitioner father; (2) to delete from said judgment the father's obligation to pay child support; and (3) to provide liberal visitation rights to the mother; and, further, which denied the mother's cross application, inter alia, to enforce the support provision of said judgment of divorce and for support arrears.

Order affirmed, without costs or disbursements.

The parties were married on June 26, 1977 and are parents of a daughter, born June 13, 1979. They entered into a separation agreement on January 27, 1981 which granted custody of the child to the mother and gave the father liberal visitation rights. The agreement did not provide for alimony but awarded child support in the amount of $35 per week. Subsequently, on May 12, 1981, the mother obtained a divorce on the ground of cruel and inhuman treatment. The judgment of divorce provided for the incorporation but not the merger of the separation agreement except insofar as the provisions related to the child, which were to merge in and not survive the divorce judgment.

Immediately thereafter the mother took the child and moved to California. The father first learned of the move when he received a letter dated May 15, 1981 and postmarked May 18, 1981 in which she gave a post office box number and a telephone number in California. Upon learning of the move, the father ceased paying child support and in July, 1981 commenced the instant proceeding pursuant to section 651 of the Family Court Act by which he sought an order awarding him custody of the parties' child, holding the mother in contempt for depriving him of visitation and suspending all support payments. The mother cross-moved for an order, inter alia, modifying the judgment of divorce to provide for visitation for the father in California and for a money judgment for arrears in support since May 8, 1981. The hearing held on the motions revealed that the father had taken full advantage of his visitation rights while the child was in New York and he had regularly paid child support until the mother and child moved to California. It was undisputed that the mother was a concerned and able parent. The mother testified that the move to California was mandated by her inability to find suitable employment in New York and by the opportunity to build a better life in California for herself and her child because of a position as a "personnel counselor" which a friend in California had offered her. She further testified that she moved to her present residence in July, 1981 without notifying the father of her change of residence because the father had made no attempt to contact her prior to that time. She admitted that she resided at her present residence with the child and her fiance whom she planned to marry in two months and whom the child now calls "daddy". The mother admitted that she gave no prior notice to the father of her intended move to California because she feared he might try to stop her or harass her.

The Family Court issued a detailed and well reasoned decision in which it found no compelling reason to justify the mother's move. In support of its decision, it cited the mother's unimpressive efforts to obtain employment in a location which would not unduly interfere with the father's visitation, the likelihood that the mother's move was motivated by the presence in California of her fiance whom she had met while still living in New York and the fact that the mother seemed intent upon depriving the father of access to the child as evidenced by her failure to bring the child to New York to visit with the father during the trial. The Family Court found that the best interests of the child would be served by transferring custody to the father. We agree.

The predominate concern in resolving custody disputes is the child's best interests (see Domestic Relations Law, §§ 70, 240; see, e.g., Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260; Bliss v. Ach, 56 N.Y.2d 995, 998, 453 N.Y.S.2d 633, 439 N.E.2d 349; Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 94, 447 N.Y.S.2d 893, 432 N.E.2d 765; Matter of Nehra v. Uhlar, 43 N.Y.2d 242, 248, 401 N.Y.S.2d 168, 372 N.E.2d 4). "It is the firmly established policy of this state * * * that, whenever possible, the best interests of a child lie in his being nurtured and guided by both of his natural parents" (Daghir v. Daghir, 82 A.D.2d 191, 193, 441 N.Y.S.2d 494 affd. 56 N.Y.2d 938, 453...