Thomas SS. v. Alicia TT.

• Decision Date: 30 June 2022
• Docket Number: 533701
• Citation: 206 A.D.3d 1534,170 N.Y.S.3d 389
• Parties: In the Matter of THOMAS SS., Appellant, v. ALICIA TT., Respondent. (Proceeding No. 1.) In the Matter of Alicia TT., Respondent, v. Thomas SS., Appellant. (Proceeding No. 2.)
• Court: New York Supreme Court — Appellate Division

206 A.D.3d 1534

170 N.Y.S.3d 389

In the Matter of THOMAS SS., Appellant,

v.ALICIA TT., Respondent.

(Proceeding No. 1.)

In the Matter of Alicia TT., Respondent,

v.Thomas SS., Appellant.

(Proceeding No. 2.)

533701

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

Calendar Date: May 24, 2022

Decided and Entered: June 30, 2022

Robert S. Beehm, Binghamton, for appellant.

Jackson Bergman, LLP, Binghamton (Sophie A. Bergman of counsel), for respondent.

Lisa K. Miller, McGraw, attorney for the child.

Before: Lynch, J.P., Clark, Pritzker, Ceresia and McShan, JJ.

MEMORANDUM AND ORDER

Ceresia, J. Appeal from an order of the Family Court of Tioga County (Keene, J.), entered April 2, 2021, which (1) denied petitioner's application, in proceeding No. 1 pursuant to Family Ct Act article 6, to modify a prior order of custody, and (2) granted petitioner's application, in proceeding No. 2 pursuant to Family Ct Act article 6, for permission to relocate with the subject child.

Thomas SS. (hereinafter the father) and Alicia TT. (hereinafter the mother) are the unmarried parents of one child (born in 2015). In 2018, Family Court issued an order of custody and visitation on stipulation, wherein the parties were granted 50/50 custody on a week on/week off basis until the time that the child was to begin prekindergarten or school. At that point, pursuant to the order, the mother would have primary physical custody of the child during the school year, with parenting time for the father on alternating weekends and certain weeknights. Notwithstanding this order, the parties agreed to continue with the 50/50 custody arrangement throughout the child's prekindergarten year. However, when the child began kindergarten in September 2020, the mother assumed primary physical custody of the child under the terms set forth in the order.

As a result, the father commenced proceeding No. 1 by filing a modification petition alleging a change in circumstances and seeking to maintain the 50/50 custody arrangement. Shortly thereafter, the mother filed a petition commencing proceeding No. 2, seeking permission to relocate to Pennsylvania with the child. Family Court issued a temporary order permitting the relocation, with the proviso that this was "subject to change" after the court conducted a hearing on both pending petitions. The mother and her husband (hereinafter the stepfather), along with the child, then moved into a new home in Athens, Pennsylvania, approximately 25 miles from where the mother had been residing. Following a fact-finding hearing conducted over three days in early 2021, the court granted the mother's relocation petition and denied the father's modification petition. The father appeals.

As an initial matter, we discern no error in Family Court's decision to grant the mother's relocation petition. "The parent seeking permission to relocate with the child[ ] bears the burden of establishing, by a preponderance of the evidence, that the proposed relocation is in the best interests of the child[ ]" ( Matter of Celinda JJ. v. Adrian JJ., 198 A.D.3d 1203, 1204, 157 N.Y.S.3d 144 [2021] [citations omitted], lv denied 37 N.Y.3d 918, 2022 WL 408247 [2022] ). The factors to be considered in determining whether the child's best interests would be served in that regard include "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 N.Y.2d 727, 740–741, 642 N.Y.S.2d 575, 665 N.E.2d 145 [1996] ; accord Matter of Celinda JJ. v. Adrian JJ., 198 A.D.3d at 1204, 157 N.Y.S.3d 144 ). "Because Family Court is in a superior position to assess witness credibility and make findings of fact, this Court gives deference and will not disturb a relocation decision that is supported by a sound and substantial basis in the record" ( Matter of Lynk v. Ehrenreich, 158 A.D.3d 1004, 1005, 71 N.Y.S.3d 203 [2018] [internal quotation marks and citations omitted], lv denied 31 N.Y.3d 909, 2018 WL 2920944 [2018] ).

At the hearing, the mother testified that she and the stepfather had decided to move because the stepfather had a job opportunity that carried the possibility of a significantly higher salary, but also required that he live in Pennsylvania. The mother indicated that she had started a job as a substitute teacher at the child's new school in Pennsylvania, which paid more than her previous job and allowed her to spend more time with the child. She also testified that her new home was only approximately 15 minutes farther away from the father than her previous home. In opposing the move, the father testified as to the increased driving distance and the fact that he was unsure if he would be able to continue to coach the child's T-ball team if Family Court were to permit a permanent relocation. In light of the foregoing, we find a sound and substantial basis in the record for Family Court's determination that the mother's relocation would enhance the lives of the mother and the child economically and emotionally (see Matter of Hammer v. Hammer, 163 A.D.3d 1208, 1210, 81 N.Y.S.3d 614 [2018] ), and that the move would not have a significant impact on the father's parenting time (see Matter of Hoppe v. Hoppe, 165 A.D.3d 1422, 1424–1425, 86 N.Y.S.3d 252 [2018], lvs denied 32 N.Y.3d 912, 913, 93 N.Y.S.3d 259, 117 N.E.3d 818, 2019 WL 150629 [2019]; Matter of Noel v. LePage, 133 A.D.3d 1129, 1131, 20 N.Y.S.3d 227 [2015], lv denied 27 N.Y.3d 902, 2016 WL 1203382 [2016] ).

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