In the Matter of Roger W. Clarke v. Boertlein

• Decision Date: 15 March 2011
• Citation: 2011 N.Y. Slip Op. 02006,82 A.D.3d 976,919 N.Y.S.2d 51
• Parties: In the Matter of Roger W. CLARKE, respondent,v.Tammy BOERTLEIN, appellant.
• Court: New York Supreme Court — Appellate Division

82 A.D.3d 976
919 N.Y.S.2d 51
2011 N.Y. Slip Op. 02006

In the Matter of Roger W. CLARKE, respondent,
v.
Tammy BOERTLEIN, appellant.

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

March 15, 2011.

[919 N.Y.S.2d 52]

Arza Feldman, Uniondale, N.Y. (Steven A. Feldman of counsel), for appellant.Blumberg, Cherkoss, Fitzgibbons & Blumberg, LLP, Amityville, N.Y. (Val Cherkoss of counsel), attorney for the children.REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, PLUMMER E. LOTT, and SHERI S. ROMAN, JJ.

[82 A.D.3d 976] In a child custody proceeding pursuant to Family Court Act article 6, the mother appeals, as limited by her brief, from so much of an amended order of the Supreme Court, Suffolk County (IDV Part)(Buetow, Ct.Atty.Ref.), dated October 30, 2009, as, after a hearing, and upon awarding her custody of the parties' three children, denied that branch of her motion which was for permission to relocate with the parties' three children to Pennsylvania.

ORDERED that the amended order is reversed insofar as appealed from, on the facts and in the exercise of discretion, with costs, that branch of the mother's motion which was for permission to relocate with the parties' three children to Pennsylvania is granted, and the matter is remitted to the Supreme Court, Suffolk County (IDV Part), for a hearing to establish an appropriate post-relocation visitation schedule for the father.

The parties are the parents of three children, ages 10, 6, and 4. In August 2008 the mother removed the children from their home in Yaphank, New York, and moved to Bellefonte, Pennsylvania, where one of her sisters resided, allegedly to escape the father's domestic violence. The mother obtained an order of protection and temporary custody from a court in Pennsylvania. In November 2008 the mother reconciled with the father and returned with the children to New York, only to leave with the children again to Pennsylvania in April 2009.

The father then commenced this proceeding in the Supreme Court, Suffolk County (IDV Part), seeking custody of the children. The mother moved for an award of custody and permission to relocate with the children to Pennsylvania. After a hearing, the Supreme Court awarded the mother custody, but denied her request for permission to relocate with the children to Pennsylvania. The mother appeals.

The disposition of a petition for permission to relocate with minor children rests upon a determination of the best interests [82 A.D.3d 977] of the children ( see

[919 N.Y.S.2d 53]

Matter of Tropea v. Tropea, 87 N.Y.2d 727, 739, 642 N.Y.S.2d 575, 665 N.E.2d 145; Matter of Collins v. Bogart, 77 A.D.3d 940, 909 N.Y.S.2d 388; Matter of Otero v. Nieves, 77 A.D.3d 756, 908 N.Y.S.2d 603; Matter of Tabernuro v. Jones, 23 A.D.3d 667, 807 N.Y.S.2d 606; Matter of Brackman v. Debrest, 276 A.D.2d 483, 713 N.Y.S.2d 879). Moreover, “[d]espite the multitude of...