Matter of Leach v. Santiago

• Decision Date: 14 July 2005
• Docket Number: 96677.
• Citation: 2005 NY Slip Op 05950,798 N.Y.S.2d 242,20 A.D.3d 715
• Parties: In the Matter of OLIVIA S. LEACH, Appellant, v. JASON SANTIAGO, Respondent. (And Two Other Related Proceedings.)
• Court: New York Supreme Court — Appellate Division

20 A.D.3d 715

798 N.Y.S.2d 242

2005 NY Slip Op 05950

In the Matter of OLIVIA S. LEACH, Appellant, v. JASON SANTIAGO, Respondent. (And Two Other Related Proceedings.)

96677.

Appellate Division of the Supreme Court of the State of New York, Third Department.

July 14, 2005.

Appeal from an order of the Family Court of Albany County (Duggan, J.), entered August 17, 2004, which, inter alia, granted respondent's application, in three proceedings pursuant to Family Ct Act article 6, to modify a prior order of custody.

Crew III, J.

Petitioner and respondent, who never married, are the biological parents of a son (born in 2000). The parties apparently resided together until early 2001 and, in November 2002, entered into a stipulated order of custody granting them joint legal custody of the child with primary physical custody of the child to petitioner and liberal visitation to respondent. That order further provided that the child could not be relocated beyond a 40-mile radius of his then current residence absent mutual agreement of the parties or a court order.

Insofar as is relevant to this appeal, petitioner filed a violation petition in October 2003 alleging that respondent repeatedly returned the child late from scheduled visitations. Thereafter, in January 2004, petitioner sought modification of Family Court's November 2002 order permitting her to relocate with the child to Staten Island, Richmond County, to pursue an employment opportunity. Respondent opposed that application and cross-petitioned for primary physical custody of the child. Following a two-day hearing, at which petitioner, respondent and their respective significant others appeared and testified, Family Court dismissed petitioner's violation petition, denied her request to relocate and granted respondent's request for primary physical custody of the child. This appeal by petitioner ensued.¹

We affirm. As the party seeking relocation, petitioner bore the burden of establishing, by a preponderance of the evidence, that moving to Staten Island was in the child's best interest (see Matter of Groover v Potter, 17 AD3d 718, 718-719 [2005]), and Family Court's determination in this regard, if supported by sound and substantial evidence, will not be disturbed (see Matter of Herman v Villafane, 9 AD3d 525, 526 [2004]). In ascertaining whether relocation is appropriate, courts will examine a number of factors, including but not limited to: "each parent's reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the child's future contact with the noncustodial parent, the degree to which the custodial parent's and child's life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements" (Matter of Tropea v Tropea, 87 NY2d 727, 740-741 [1996]; see Matter of Paul v Pagnillo, 13 AD3d 971, 972 [2004].)

Here, Family Court painstakingly analyzed each of the factors enumerated in Tropea and quite appropriately concluded, among other things, that petitioner simply failed to demonstrate how the proposed move to Staten Island would enhance her desired career path and, in turn, the child's welfare. Rather, it would appear, as Family Court found, that petitioner's primary motivation for the relocation was to be with her fiancé. Although petitioner, who graduated with a Bachelor's degree in political science and interned in the State Assembly, testified that she was unable to secure employment in the Albany area and that her current employment in Staten Island would allow her to pursue her political ambitions, her testimony on the latter point was rather vague and her purported job search in the Albany area was entirely undocumented. Additionally, it is readily apparent from the record that moving the child to Staten Island would have a substantial impact on the relationship between respondent and his son. On this point, respondent testified that he had numerous visitation disputes with petitioner, and that his requests for additional time with his son...