SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
325
CAF 14-01382
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.
IN THE MATTER OF JULIE WRAY JACOBSON,
PETITIONER-APPELLANT,
V MEMORANDUM AND ORDER
KEITH H. WILKINSON,
RESPONDENT-RESPONDENT.
LAW OFFICES OF ANNETTE G. HASAPIDIS, SOUTH SALEM (ANNETTE G. HASAPIDIS
OF COUNSEL), FOR PETITIONER-APPELLANT.
THE SAGE LAW FIRM GROUP, PLLC, BUFFALO (KATHRYN FRIEDMAN OF COUNSEL),
FOR RESPONDENT-RESPONDENT.
ELISABETH M. COLUCCI, ATTORNEY FOR THE CHILD, BUFFALO.
Appeal from an order of the Family Court, Erie County (Paul G.
Buchanan, J.), entered December 6, 2013 in a proceeding pursuant to
Family Court Act article 6. The order, inter alia, granted the
parties joint custody of the subject child.
It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by vacating ordering paragraphs one
and six, awarding petitioner sole legal and primary physical custody
of the subject child and vacating the phrases “mother’s house” and
“father’s house” in the eighth ordering paragraph and substituting
therefor the phrase “a neutral location,” and as modified the order is
affirmed without costs.
Memorandum: Petitioner mother appeals from an order that, inter
alia, granted the parties joint custody of their child, and denied the
mother’s request to relocate with the child to California. We note at
the outset that, inasmuch as respondent father did not timely perfect
a cross appeal seeking affirmative relief, his cross appeal was deemed
dismissed (see 22 NYCRR 1000.12 [b]; Edgett v Clarelli, 72 AD3d 1635,
1635).
We further note that this case involves an initial custody
determination and “ ‘cannot properly be characterized as a relocation
case to which the application of the factors set forth in Matter of
Tropea v Tropea (87 NY2d 727, 740-741 [1996]) need be strictly
applied’ ” (Matter of Quistorf v Levesque, 117 AD3d 1456, 1456). A
court may consider relocation as part of a best interests analysis
with respect to a custody determination, but it is one factor among
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CAF 14-01382
many (see id. at 1457).
Upon weighing the appropriate factors (see Matter of Wissink v
Wissink, 301 AD2d 36, 39-40), we conclude that Family Court’s
determination that the child’s best interests would be served by
awarding joint custody to the parties lacks a sound and substantial
basis in the record (see Matter of Shannon J. v Aaron P., 111 AD3d
829, 830). “[W]here, as here, domestic violence is alleged, ‘the
court must consider the effect of such domestic violence upon the best
interests of the child’ ” (Matter of Moreno v Cruz, 24 AD3d 780, 781,
lv denied 6 NY3d 712, quoting Domestic Relations Law § 240 [1]). We
conclude that the evidence of the father’s acts of domestic violence
demonstrates that he “possesses a character [that] is ill-suited to
the difficult task of providing [his] young child with moral and
intellectual guidance” (id.), and that the best interests of the child
are served by awarding the mother sole legal custody and primary
physical custody, with visitation to the father. We therefore modify
the order accordingly. We further conclude, however, that the court
properly denied the mother’s request to relocate with the child to
California (see generally Matter of Murphy v Peace, 72 AD3d 1626,
1626-1627).
We reject the mother’s contention that the court erred in
fashioning the parenting schedule, and we discern no basis for
disturbing it as a visitation schedule in light of the modification of
custody. The schedule permits meaningful interaction between the
child and both parents, which the court properly determined was in the
child’s best interests (see Matter of Rought v Palidar, 6 AD3d 1112,
1112). Nevertheless, we agree with the mother that the exchanges of
the child should occur at neutral locations, and we therefore further
modify the order accordingly.
Entered: May 1, 2015 Frances E. Cafarell
Clerk of the Court