Schouten v. Schouten

• Decision Date: 06 November 1989
• Parties: In the Matter of Arthur P. SCHOUTEN, Respondent, v. Virginia L. SCHOUTEN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 126

547 N.Y.S.2d 126

155 A.D.2d 461

In the Matter of Arthur P. SCHOUTEN, Respondent, v. Virginia L. SCHOUTEN, Appellant.

Supreme Court, Appellate Division,

Second Department.

Nov. 6, 1989.

Robert Freehill, Howells (Sheila Callahan O'Donnell, of counsel), for appellant.

Hoover & Ellerin, Goshen (John J. Hayden, of counsel), for respondent.

Before MOLLEN, P.J., and BROWN, RUBIN and SULLIVAN, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to Family Court Act article 6, the mother appeals from a dispositional order of the Family Court, Orange County (Bivona, J.), entered September 6, 1989, which, after a hearing, granted the father's petition to change custody of the parties' two children from the mother to him on the ground that the mother had relocated with the children from Circleville, New York, to Tupper Lake, New York.

ORDERED that the order is reversed, on the facts and in the exercise of discretion, with costs to the defendant, and the petition is granted to the extent that the father is awarded visitation of (1) one weekend per month, (2) alternate Christmas and Easter (or spring) recesses, (3) alternate Thanksgiving recesses, (4) every Father's Day weekend, (5) six weeks of the children's summer recess and (6) at any other reasonable times agreed upon by the parties, and is otherwise denied.

The parties were married in 1976 and have two children, Arthur Paul, Jr., born in 1979 and Katherine Ann, born in 1982. The family resided together in Circleville, New York, until the parties separated in October 1988 and the father moved to another residence in the same municipality. In February 1989 the parties entered into a separation agreement pursuant to which the mother was given sole custody of the children and the father was given liberal visitation. The separation agreement was incorporated but not merged into a judgment of divorce dated March 14, 1989.

In June 1989 the father commenced the instant proceeding seeking to transfer custody from the mother to himself on the ground that the mother had moved her residence from Circleville to Tupper Lake, New York, a distance of 258 miles, that the move interfered with his visitation rights, and that the move was not in the best interests of the children. Following a hearing, the Family Court granted the petition, transferred custody of the children to the father, and awarded the mother visitation of seven weeks in the summer and one-half of the children's Christmas and Easter school recesses. We reverse.

A change in custody may be made by the court only when the totality of the circumstances warrants doing so in the best interests of the child (see, Eschbach v. Eschbach, 56 N.Y.2d 167, 451 N.Y.S.2d 658, 436 N.E.2d 1260; Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 447 N.Y.S.2d 893, 432 N.E.2d 765). Since any such determination depends largely upon an assessment of the credibility and character of all the parties involved, the trial court's findings must be accorded great respect on appeal (see, Eschbach v. Eschbach, supra ). Nonetheless, "[a]n appellate court would be seriously remiss if, simply in deference to the finding of a Trial Judge, it allowed a custody determination to stand where it lacks a sound and substantial basis in the record" (Matter of Gloria S. v. Richard B., 80 A.D.2d 72, 76, 437 N.Y.S.2d 411). Such is the case here.

While the record makes it clear that the parties are equally fit parents, the father has failed to show that a change of custody is justified by the mother's relocation. In particular we reject his contention that the geographic move would effectively deprive him of regular and meaningful access to the children (see, Weiss v. Weiss, 52 N.Y.2d 170, 436 N.Y.S.2d 862, 418 N.E.2d 377; Schwartz v. Schwartz, 91 A.D.2d 628, 456 N.Y.S.2d 811). Tupper Lake is a reasonable distance from the father's residence and...