State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: October 23, 2014 517268
____________________________________
In the Matter of TABBATHA
K. COWPER,
Appellant,
v
MEMORANDUM AND ORDER
JOHN J. VASQUEZ,
Respondent.
(And Two Other Related Proceedings.)
____________________________________
Calendar Date: October 14, 2014
Before: Peters, P.J., Stein, Rose, Egan Jr. and Clark, JJ.
__________
Pamela B. Bleiwas, Ithaca, for appellant.
Margaret McCarthy, Ithaca, for respondent.
Andrea J. Mooney, Ithaca, attorney for the children.
__________
Peters, P.J.
Appeal from an order of the Family Court of Chemung County
(Forrest, J.), entered July 15, 2013, which, among other things,
dismissed petitioner's application, in a proceeding pursuant to
Family Ct Act article 6, for permission to relocate with the
parties' children.
Petitioner (hereinafter the mother) and respondent
(hereinafter the father) are the parents of two children (born in
2006 and 2008). Both parties are originally from Michigan, where
they resided together from 2004 through 2009. Following their
separation in 2009, the mother and the children moved to Chemung
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County, near the residence of the maternal grandmother. The
father relocated to Chemung County in 2011 and, by informal
agreement, the mother retained physical custody of the children
while the father enjoyed regular visitation. In July 2012, the
mother commenced this proceeding seeking custody of the children.
The next day, the father petitioned for joint custody and
visitation. A temporary order issued upon agreement of the
parties provided for joint legal custody. In February 2013,
prior to a fact-finding hearing on the parties' custody
petitions, the mother sought an order permitting her to relocate
with the children to Ohio. Following the hearing, Family Court
granted the parties joint legal custody, with primary physical
custody to the mother and visitation to the father, and dismissed
the mother's relocation petition, finding that her move would not
be in the children's best interests. The mother appeals,
challenging only Family Court's dismissal of her petition
requesting relocation.
"[E]ach relocation request must be considered on its own
merits with due consideration of all the relevant facts and
circumstances and with predominant emphasis being placed on what
outcome is most likely to serve the best interests of the
child[ren]" (Matter of Tropea v Tropea, 87 NY2d 727, 739 [1996];
accord Matter of Vargas v Dixon, 78 AD3d 1431, 1432 [2010]).
Consideration may be given 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
the child through suitable visitation arrangements" (Matter of
Tropea v Tropea, 87 NY2d at 740-741; accord Matter of Norback v
Norback, 114 AD3d 1036, 1036-1037 [2014]; Matter of Adams v
Bracci, 91 AD3d 1046, 1047 [2012], lv denied 18 NY3d 809 [2012]).
As Family Court is in the best position to make factual findings
and credibility determinations, its decision will not be
disturbed if supported by a sound and substantial basis in the
record (see Matter of Weber v Weber, 100 AD3d 1244, 1245-1246
[2012]; Matter of Sullivan v Sullivan, 90 AD3d 1172, 1173
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[2011]). Notably, as the order being appealed is an initial
custody determination, we need not adhere to a strict application
of the Tropea factors (see Matter of Lynch v Gillogly, 82 AD3d
1529, 1530 [2011]).
As to the quality of the children's relationships with
their parents, the evidence at the hearing established that both
the mother and the father are loving and committed parents.1 It
is undisputed that the mother had always been the children's
primary caretaker, while the father provided economic support
and, in recent years, regularly visited with the children. The
mother's motivation for relocating to Ohio was her fiancé, who
had moved out of Chemung County in 2011, first to Oklahoma and
then to Ohio. While this is a valid consideration (see Matter of
Tropea v Tropea, 87 NY2d at 739; Matter of Stetson v Feringa, 114
AD3d 1089, 1090 [2014]), the record does not otherwise indicate
that the children's economic, emotional or educational well-being
would be substantially enhanced by their move. Nor did the
mother propound the testimony of her fiancé to enable Family
Court to assess whether residing with him would be in the
children's best interests. The mother testified that she had
secured employment in Ohio after having been unemployed in
Chemung County for a year. However, she attributed some of her
difficulty in finding employment in New York to her reluctance to
place the children in day care, although admitting that she would
do so in order to work in Ohio. Moreover, while the mother
testified that she had researched the Ohio school system online,
she offered no evidence that the proposed new school would
provide the children with better educational opportunities than
they were receiving in Chemung County (see Matter of Batchelder v
BonHotel, 106 AD3d 1395, 1397 [2013]). The mother also testified
that she had selected a three-bedroom townhouse in Ohio that was
close to the children's potential school, but there was no
evidence that the children's current living situation was
1
The parties did not request, and Family Court did not
conduct, a Lincoln hearing; however, the attorney for the
children indicated that the children desired to remain in the
mother's physical custody and enjoyed their visitation time with
the father.
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unsatisfactory.
Significantly, Family Court determined that relocation
would negatively impact the children's relationship with the
father. This is fully supported by the record. The mother
conceded that the driving time between Chemung County and the
proposed location in Ohio would be between 6½ and 7 hours and,
thus, would necessitate either a modification of the current
visitation schedule or a parallel move to Ohio by the father in
order to preserve his relationship with the children. The
father, noting that his sole purpose in coming to New York was to
be with the children, testified that he desired greater
visitation than the twice-weekly visits he currently enjoyed and,
in particular, sought more weekday time, as his employment in the
restaurant industry was only economically worthwhile so long as
he worked on weekends. In addition, he expressed concern as to
the effect of the distance on the children's ability to maintain
a relationship with him while being engaged in school and social
activities. While mindful that the mother has been the primary
caregiver, we reject her assertion that Family Court's
determination was not supported by a sound and substantial basis
in the record (see Matter of Bracy v Bracy, 116 AD3d 1172, 1174
[2014]; Matter of Williams v Williams, 90 AD3d 1343, 1345 [2011];
Matter of Kirshy-Stallworth v Chapman, 90 AD3d 1189, 1192 [2011];
Matter of Munson v Fanning, 84 AD3d 1483, 1485 [2011]).
Stein, Rose, Egan Jr. and Clark, JJ., concur.
ORDERED that the order is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court