Estevez v. Perez

• Decision Date: 03 December 2014
• Citation: 2014 N.Y. Slip Op. 08430,998 N.Y.S.2d 413,123 A.D.3d 707
• Parties: In the Matter of Johanna ESTEVEZ, respondent, v. Emanuel PEREZ, appellant.
• Court: New York Supreme Court — Appellate Division

123 A.D.3d 707

998 N.Y.S.2d 413

2014 N.Y. Slip Op. 08430

In the Matter of Johanna ESTEVEZ, respondent,

v.Emanuel PEREZ, appellant.

Supreme Court, Appellate Division, Second Department, New York.

Dec. 3, 2014

Affirmed.

Janessa M. Trotto, Holbrook, N.Y., for appellant.

Robert C. Mitchell, Central Islip, N.Y. (John B. Belmonte of counsel), for respondent.

Margaret Schaefler, Hauppauge, N.Y., attorney for the child.

REINALDO E. RIVERA, J.P., SYLVIA O. HINDS–RADIX, COLLEEN D. DUFFY, and HECTOR D. LaSALLE, JJ.

Appeal from an order of the Family Court, Suffolk County (Linda M. Boggio, Ct. Atty. Ref.), dated August 30, 2013. The order, after a hearing, granted the mother's petition to modify a prior order of custody of that court so as to award residential custody of the subject children to the mother and to grant the mother's request to relocate with the children.

ORDERED that the order is affirmed, without costs or disbursements.

Contrary to the father's contention, the Family Court was not bound to adhere to its prior order dated July 6, 2012, in rendering its determination here. “Generally, child custody and visitation orders are not entitled to res judicata effect, as [such orders] are subject to modification,” based upon a showing of changed circumstances ( Matter of Kevin Z. [Carmella AA. Edward Z.], 105 A.D.3d 1269, 1270, 966 N.Y.S.2d 226; see Sequeira v. Sequeira, 105 A.D.3d 504, 505, 963 N.Y.S.2d 102; see also Matter of Henderson v. Henderson, 20 A.D.3d 421, 798 N.Y.S.2d 128). To modify an existing custody order, there must be a showing of a change in circumstances such that modification is necessary to ensure the continued best interests of the child ( see Matter of Dezil v. Garlick, 114 A.D.3d 773, 980 N.Y.S.2d 506; Matter of Sparacio v. Fitzgerald, 73 A.D.3d 790, 790, 899 N.Y.S.2d 640), under the totality of the circumstances ( see Eschbach v. Eschbach, 56 N.Y.2d 167, 172, 451 N.Y.S.2d 658, 436 N.E.2d 1260).

In determining whether relocation is appropriate, each “request must be considered on its own merits with due consideration of all the relevant facts and circumstances and with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child” ( Matter of Tropea v. Tropea, 87 N.Y.2d 727, 739, 642 N.Y.S.2d 575, 665 N.E.2d 145; see Matter of Caruso v. Cruz, 114 A.D.3d 769, 771–772, 980 N.Y.S.2d 137). The relevant factors include “each parent's reasons for seeking or opposing the move, the quality of the relationships between the child and both parents, the impact of the move on the quantity and quality of the child's future contact with the noncustodial parent,...