Gomez v. Martinez

• Decision Date: 04 November 2020
• Docket Number: 2019-03805,2019-03806,Docket Nos. V-933-08, V-24766-07
• Citation: 133 N.Y.S.3d 658,188 A.D.3d 682
• Parties: In the Matter of Michael GOMEZ, petitioner-respondent, v. Ilea MARTINEZ, respondent-appellant; Jaymian G. (Anonymous), nonparty-appellant.
• Court: New York Supreme Court — Appellate Division

188 A.D.3d 682

133 N.Y.S.3d 658

In the Matter of Michael GOMEZ, petitioner-respondent,

v. Ilea MARTINEZ, respondent-appellant;Jaymian G. (Anonymous), nonparty-appellant.

2019-03805

2019-03806

Docket Nos. V-933-08, V-24766-07

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

Argued - September 22, 2020

November 4, 2020

Lewis S. Calderon, Jamaica, NY, attorney for the child, the nonparty-appellant.

Jeffrey C. Bluth, New York, NY, for respondent-appellant.

Jennifer Arditi, Maspeth, NY, for petitioner-respondent.

CHERYL E. CHAMBERS, J.P., SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, COLLEEN D. DUFFY, JJ.

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 6, (1) the subject child appeals from a decision of the Family Court, Queens County (Craig Ramseur, Ct. Atty. Ref.), dated March 7, 2019, and (2) the mother and the subject child separately appeal from an order of the same court dated March 8, 2019. The order dated March 8, 2019, insofar as appealed from, dismissed the mother's petition to relocate to New Jersey with the subject child. The mother's notice of appeal from the decision dated March 7, 2019, is deemed to be a notice of appeal from the order dated March 8, 2019 (see CPLR 5512[a] ).

ORDERED that the subject child's appeal from the decision is dismissed, without costs or disbursements, as no appeal lies from a decision (see Schicchi v. J.A. Green Constr. Corp., 100 A.D.2d 509, 472 N.Y.S.2d 718 ); and it is further,

ORDERED that the order dated March 8, 2019, is reversed insofar appealed from, on the facts and in the exercise of discretion, without costs or disbursements, and the matter is remitted to the Family Court, Queens County, for an in camera interview with the subject child, preparation of an updated forensic report, a further hearing, and a new determination of the mother's petition to relocate to New Jersey with the subject child.

The parties, who were never married to each other, are the parents of the subject child, born in 2007. On June 26, 2014, upon the parties' consent, the Family Court awarded sole custody of the subject child to the mother, and awarded the father parental access, inter alia, on alternate weekends. In September 2015, the mother, the subject child, and the mother's younger child from another relationship moved from her apartment, which had been flooded, to the home of her mother and stepfather in Queens. Since her parents' house was crowded and under renovation, at the mother's request, in January 2016, the subject child moved in with the father to live on a regular basis. The mother saw the subject child on alternate weekends and twice per week.

In August 2016, the mother relocated to Eatontown, New Jersey, with a position as a supervisor for a company called "Better Qualified," where she was able to work flexible hours. Meanwhile, the subject child remained in Queens, during the entire 2016–2017 school year.

On or about August 31, 2017, the father sought and was awarded temporary legal custody of the subject child. By petition dated September 14, 2017, the father sought permanent legal custody on the grounds, inter alia, that the mother was living at an undisclosed location with a convicted felon and she heavily smoked marihuana. The mother thereafter moved for permission to relocate to New Jersey with the subject child.

At a hearing on the petitions, a forensic evaluator testified that custody should be with the mother, noting that the subject child said that he would prefer to live with the mother, and living with the mother would permit the subject child to live in a more relaxed environment where he could express his feelings. The forensic evaluator noted that the father asked the subject child if the mother was still seeing her new boyfriend, a convicted felon, and when the subject child said no, the father called him a liar, which upset the subject child. The forensic evaluator noted in his report that the boyfriend did not live with the mother and that the mother and her boyfriend decided to keep their visits to a minimum, because the boyfriend was on parole and could not leave New York State without permission.

The father testified that he had concerns about the mother's boyfriend and her "weed smoking." The father noted that for the last two years, he has worked weekends, sometimes 12 to 15 hours a day, driving a truck for film shoots. Therefore, if he were awarded parental access on weekends, the subject child would have to stay either with his mother or the maternal grandmother.

The mother testified that she worked flexible hours, and is permitted to work from home after school hours, so she can care for her younger child who is diabetic. She had worked as a realtor in New York, and when her employer in New York offered her this new position in New Jersey, and paid her security deposit for an apartment, she accepted the position and rented an apartment close to her new office. She claimed that her new location was 90 minutes by train and 45 minutes by car from New York.

The mother noted that during the summer of 2017, she arranged for the subject child's transfer to a school in New Jersey, but after the father commenced a proceeding for custody at the end of August 2017, communication with the father stopped. Once the father was awarded temporary custody, she saw the subject child every other weekend. She stated that if the subject child resided with her, the father would have parental access every other weekend and most holidays, and they would share school breaks.

The Family Court determined that both parties failed to meet their...