Matter of Solomon v. Long

• Decision Date: 24 December 2009
• Docket Number: 505816
• Parties: In the Matter of SELENA R. SOLOMON, Appellant, v. JOSEPH LONG JR., Respondent.
• Court: New York Supreme Court — Appellate Division

68 A.D.3d 1467

2009 NY Slip Op 9565

891 N.Y.S.2d 528

In the Matter of SELENA R. SOLOMON, Appellant, v. JOSEPH LONG JR., Respondent.

505816

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

Decided December 24, 2009.

Appeal from an order of the Family Court of Chemung County (Brockway, J.). entered August 28, 2008, which dismissed petitioner's application, in a proceeding pursuant to Family Ct Act article 6, to modify a prior order of custody.

McCARTHY, J.

Petitioner (hereinafter the mother) and respondent (hereinafter the father) never married and are the parents of a son (born in 1996). The mother has sole legal and physical custody and the father is authorized to have unsupervised visitation every other weekend and a minimum of twice-weekly telephone contact. Moreover, the most recent custody order expressly prohibits the mother from moving the child's residence from Chemung County without written approval of the court. In 2008, the mother petitioned Family Court for permission to relocate the child from the City of Elmira, Chemung County to the Village of Fairport, Monroe County, approximately two hours away. The impetus for the relocation was the mother's pending marriage to her then-fiancé. In a well-reasoned decision, Family Court dismissed the petition, finding, after thoughtful consideration of all the relevant factors, that relocation would not serve the child's best interests. We affirm.

The mother has been the child's primary caregiver since his birth, when she was only 18 years old. Relying on the child's maternal grandmother for day care, the mother has maintained steady employment, put herself through nursing school and, at the time of the petition, worked as a registered nurse at a hospital in Sayre, Pennsylvania. She met her future fiancé in January 2007, and they were engaged a year later. Her fiancé runs a family-owned, Internet-based business. He was previously married, has no children, owns his own home and enjoys a good relationship with the parties' son. By the time of trial, the mother had accepted a nursing position with a hospital in the City of Rochester, Monroe County—near Fairport—which provided a modest increase in pay and free tuition benefits that would allow her to further develop her professional nursing education at the University of Rochester. After five years at that hospital, she would also receive a 50% tuition reduction at the university for the parties' son. The mother also testified that the new position would require only three 12-hour shifts per week, in contrast to the 40 to 50 hours per week she works in Pennsylvania, allowing her to spend more time with the child. The mother valued the child's relationship with his father and was willing to continue to be flexible and generous with visitation. She also offered to forgo child support and help defray the increased transportation costs associated with visitation if the petition were granted.

Early in the child's life, the father had several alcohol-related charges, and served a prison term for leaving the scene of an accident. A prior custody order required supervised visitation. The father underwent treatment and has maintained an unrestricted driver's license for more than 10 years. In recent years, the father and son have developed a very strong bond, principally through the father's participation in the son's sporting activities. The son is a gifted athlete, and the father has coached the son's baseball, basketball and football teams for the past several years. They also enjoy fishing and camping together. Although the father has not participated as extensively in their son's school activities as the mother has, the son is nevertheless an honor student. Since 2002...