State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: July 9, 2015 517073
________________________________
In the Matter of REBECCA HH.,
Respondent,
v MEMORANDUM AND ORDER
GERALD HH.,
Appellant.
(And Other Related Proceedings.)
________________________________
Calendar Date: June 1, 2015
Before: Lahtinen, J.P., Lynch, Devine and Clark, JJ.
__________
Abbie Goldbas, Utica, for appellant.
Christopher A. Pogson, Binghamton, attorney for the child.
__________
Lynch, J.
Appeal from an order of the Family Court of Broome County
(Charnetsky, J.), entered March 15, 2013, which, among other
things, granted petitioner's application, in a proceeding
pursuant to Family Ct Act article 6, to modify a prior order of
custody.
Petitioner (hereinafter the mother) and respondent
(hereinafter the father) are the parents of a child (born in
2000). The parties, who resided in the City of Binghamton,
Broome County, shared joint custody of the child pursuant to a
November 2010 custody order. Specifically, the mother had
primary physical custody while the father had nearly equal,
regular weekly parenting time. In October 2011, the mother
commenced this modification proceeding seeking permission to
-2- 517073
relocate the child from Binghamton to Charlotte, North Carolina.
The father opposed the petition and, among other things, cross-
petitioned for sole custody of the child.
The fact-finding hearing began in July 2012. Prior to its
conclusion, but after Family Court conducted a Lincoln hearing,
the mother, with the support of the attorney for the child,
sought permission to allow her to move the child to North
Carolina on a temporary basis during the pendency of the
proceeding. Family Court granted the mother's request and, among
other things, directed that the father have phone or Skype
contact with the child every evening at 7:00 p.m. The fact-
finding hearing continued over a number of days before concluding
in February 2013. After hearing all the evidence, Family Court
granted the mother's petition to relocate, and the father now
appeals.1
As she was the party seeking to relocate, the mother was
obligated to establish by a preponderance of the credible
evidence that relocation was in the child's best interests (see
Matter of Tropea v Tropea, 87 NY2d 727, 741 [1996]; Matter of
Cook-Lynch v Valk, 126 AD3d 1062, 1063 [2015]; Matter of Pizzo v
Pizzo, 94 AD3d 1351, 1352 [2012]). Prior to rendering its
determination, Family Court was obligated to consider such
factors as "each parent's reasons for seeking or opposing the
move, the quality of the relationships between the child and the
. . . 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 visiting
arrangements" (Matter of Tropea v Tropea, 87 NY2d at 740-741).
Because we recognize that Family Court was in the best position
to make factual findings and assess witnesses' credibility, we
will not disturb its determination as long as it is supported by
a sound and substantial basis in the record (see Matter of
1
The mother has not filed a brief or contacted the Court
with regard to her position on this appeal.
-3- 517073
Spaulding v Stewart, 124 AD3d 1111, 1112 [2015], lv denied 25
NY3d 903 [2015]; Matter of Weber v Weber, 100 AD3d 1244, 1245-
1246 [2012]; Matter of Pizzo v Pizzo, 94 AD3d at 1352).
Here, the mother's testimony established that she had a
poor relationship with the father and they were unable to
communicate effectively for the benefit of the child. She
explained that she wanted to relocate to North Carolina so that
she and the child could live in the home that she owns with her
husband (hereinafter the stepfather), who she married in 2011.
At the time of the hearing, the stepfather was working in North
Carolina as a mental health therapist, and the mother and the
child were traveling to see him approximately once each month.
The mother explained that the child would experience a financial
benefit if they relocated because she would not have to maintain
two households and the cost of living was higher in Binghamton
than in North Carolina. Further, the mother explained that,
despite her efforts, she had been unable to find a job in the
Binghamton area and she had received an offer for a job that was
being held for her in North Carolina. The mother also testified
that, after the child was allowed to relocate pursuant to the
temporary order, his grades were good, with the exception of
math, and he was not experiencing any behavioral issues at his
new school.
For his part, the father testified on his own behalf and
also presented the testimony of the child's paternal grandfather,
the child's stepmother, the father's pastor, and the child's
basketball coach. Their testimony established that the child was
part of a large extended family on his father's side, that the
child regularly attended church and participated in its choir and
softball league, and that the father was involved in and
supported the child's athletic activities by volunteering as a
coach and referee. The stepmother testified that, after the
child was allowed to temporarily relocate to North Carolina, she
believed that the child had become "rude" and disrespectful to
the father. Similarly, the father testified that he believed
that the mother was not encouraging the child to contact him each
day. According to the father, his relationship with the child
would continue to deteriorate if the mother were permitted to
permanently relocate to North Carolina, the child would not be
-4- 517073
able to participate in sporting activities as much if he were not
involved,2 and the child would not be able to spend time with his
extended family located in the Binghamton area.
In addition to the parents, Family Court also heard
testimony from the child's elementary school counselor. She
testified that she met with the child occasionally while he was
in first through fifth grades due to certain behavioral issues.
After the father complained, it was agreed that she would not see
the child unless she received a request from the parents or the
child came to her directly. With respect to the father's
complaints, the school counselor recalled that she once had to
end a meeting with the father after he became hostile with her,
and she once observed the father being asked to leave school
grounds as a result of his behavior towards the school principal.
The school counselor testified that she referred the child to a
social worker after he reported to her that he was feeling
suicidal. That licensed social worker, who met with the child
for approximately two years, testified that the child expressed a
desire to relocate with the mother and reported that he was
"fearful" of the father. Finally, Family Court heard from a
child protective caseworker employed by the Broome County
Department of Social Services, who testified that she had
received a report in January 2012 that the father had physically
assaulted the child and she interviewed the mother, father, child
and school staff members with respect to this report.
Each party testified that they enjoyed a good relationship
with the child. As to the relationship between the father and
the child, Family Court determined that the caseworker's
testimony with regard to the incident leading to the January 2012
report was credible. Still, the record confirms that the father
blames the mother for his worsening relationship with the child
and does not have any insight into the ways his behavior might
have contributed to their relationship. Pursuant to Family
Court's March 2013 order, the father has less time with the child
2
The father reasoned that, in general, a child's access to
recreational sports is enhanced if the parent is involved with
the coaching staff.
-5- 517073
during the school year to be sure, but, in addition to telephone
calls and Skype contact, he has ample and extended time with the
child during the summer months and school vacations and can visit
each month in North Carolina if he wishes. In our view, giving
the requisite deference to Family Court's credibility
assessments, there was a sound and substantial basis in the
record for its finding that it was in the child's best interests
to allow the mother to relocate to North Carolina (see Matter of
Spaulding v Stewart, 124 AD3d at 1113; Matter of Weber v Weber,
100 AD3d at 1247).
The father's remaining arguments, including the argument
that Family Court abused its discretion by allowing the child to
relocate temporarily, have been considered and found to be
without merit.
Lahtinen, J.P., Devine and Clark, JJ., concur.
ORDERED that the order is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court