Alaire K.G. v. Anthony P.G.

OPINION OF THE COURT Moskowitz, J. This appeal, involving a custodial parent’s request to relocate with the parties’ child, falls within the class of cases that “present some of the knottiest and most disturbing problems that our courts are called upon to resolve” (Matter of Tropea v Tropea, 87 NY2d 727, 736 [1996]). The parties were married in January 2004, separated about a year and a half later and were divorced on July 13, 2006. They are the parents of a now six-year-old boy born on May 17, 2004. The stipulation settling the divorce case granted the mother legal and physical custody of the child. The father had visitation every week from Monday at 8:00 a.m. until Wednesday at 6:00 p.m. The stipulation allowed relocation within 25 miles of the father’s house in the Bronx. The father has had a history of irregular employment and is currently not employed. At the time of trial, the mother, who is remarried, cared for her younger child from her second marriage, full time. After the parties separated, the mother remained in the marital apartment in the Bronx with the child for two years. In the fall of 2007, she began working as a project administrator in the construction field. In 2007, she moved with the child and her boyfriend to Connecticut. The mother testified that she always wanted her son to be in a suburban environment. She stated — 218 — that she was trying “to mirror my own childhood. I had a wonderful suburban upbringing.” The relationship in Connecticut ended when the boyfriend returned to his native New Zeal- and. The mother returned to New York with the child and moved into an apartment in Harlem. In January 2008, the mother met her future husband, Hugh Bonnar, on Match.com. Bonnar was retired from the Air Force, lived in North Carolina and was then involved in a nationwide job search. Ultimately, Bonnar took a job with Northrop Grumman in San Diego. He had requested to work at Northrop Grumman’s Long Island branch, but the company could not accommodate his request. The mother and Bonnar became engaged in May 2008. Soon after her engagement, the mother approached the father about moving to California to live with Bonnar. The father was concerned about the distance and the stability of the mother’s new relationship. The parties therefore met with a mediator to try to work out an arrangement by which the mother could leave the child with the father temporarily while she settled in California. The mediator sent a letter, dated May 12, 2008, that purported to memorialize the parties’ agreement. The letter stated that the parties agreed that the child would stay with the father from June 27, 2008 until December 31, 2008, with the mother making several long weekend visits to New York. Mother and son were also to participate in a webcam phone call two to three times a week. The letter did not address where the child would live after December 31, 2008. However, the father refused to sign an agreement embodying these terms and instead asked the mother to sign over custody to him. She refused. The mother left for California on June 26, 2008. She claims that she never intended the father to have permanent custody, but arrangements to move to California had become irreversible by the time she learned that the father did not agree. The mother gave birth to Bonnar’s son on April 4, 2009. She and Bonnar were also married in April 2009. On July 17, 2008, the father filed a petition seeking sole legal and physical custody of the parties’ child, claiming that the mother had abandoned the child. On December 1, 2008, the mother filed a petition for relocation. The court consolidated the two petitions. Before the hearing, the father withdrew his petition for sole custody. Accordingly, the court considered only the relocation application. It was not until August 2009 that a two-day hearing finally took place. The parties were the only witnesses. The court did — 219 — not issue a decision until almost a year later, on July 19, 2010, granting the mother’s relocation petition. During the time the parties were waiting for the court’s decision, the child continued to live with the father. After the court’s decision was issued, the child moved to California in compliance with the court’s order. “[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” (Matter of Tropea v Tropea, 87 NY2d 727, 739 [1996]). Among the factors the court must consider are: (1) “each parent’s reasons for seeking or opposing the move,” (2) the quality of the child’s relationship with each parent, (3) the impact of the move on the child’s future contact with the noncustodial parent, (4) the degree to which the move may enhance the custodial parent’s and child’s life economically, emotionally and educationally, and (5) “the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements” (id. at 740-741). The dissent states that Tropea dictates that the court’s “central concern” should be the impact of the move on the relationship between the child and the noncustodial parent. This interpretation misreads the case. Tropea states that “[o]f course, the impact of the move on the relationship between the child and the noncustodial parent will remain a central concern” (id. at 739). However, it is not “the” central concern. Rather, the case makes abundantly clear that, “it is the rights and needs of the children that must be accorded the greatest weight” (id.). Indeed, the Court of Appeals rejected the “three-tiered” analysis that required a court to determine first “whether the proposed relocation would deprive the noncustodial parent of ‘regular and meaningful access to the child’ ” (id. at 736). Family Court recognized the Tropea factors and analyzed this case accordingly: “While it is true that Mother was young when Aodhan was born, there is no question now that she is in a stable relationship, remarried and that her financial situation dictates that her family live where her husband can make a living. The benefits to the child were demonstrated^] by testimony and documentary evidence, as a suburban middle class lifestyle, public school with every possible amenity available at no cost, comprehensive health insur — 220 — anee, a stay at home mother, easily available excellent physicians, a positive post-divorce family unit and most importantly, the benefits of the child growing up with his younger brother on a daily basis. “The Court recognizes and agonized at great length over the impact of the relocation on the child’s ability to maintain a consistent, ongoing and meaningful relationship with his Father. The visitation schedule set forth hereinafter is designed to mitigate such impact, given the distance between New York and California.” There is no reason to disturb the findings of the court, that had the opportunity to héar the parents testify and had an in camera meeting with the child (see Matter of James Joseph M. v Rosana R., 32 AD3d 725, 726 [2006], Iv denied 7 NY3d 717 [2006] [“Custody matters are within the sound discretion of the Family Court, and its findings should be accorded great deference on appeal since that court was in the best position to evaluate the testimony, character, and sincerity of the parties” (internal quotation marks and citation omitted)]). There is a sound and substantial basis in the record for the determination granting the mother’s request to relocate to California with her son (see id.). First, there is no question that the California home is financially more stable than the father’s home. The stepfather has a steady job with Northrop Grumman that provides his family with health insurance. By contrast, the father is not currently working. Although he has been offered a job as a teacher’s aide, he has postponed his start date. He is currently on some type of public assistance and receives money from his parents in Ireland. He readily admits that “it’s not been easy like money wise.” He is not currently in a relationship. Given his bleak financial circumstances, with no career or family in New York, it would appear that there is nothing keeping the father from moving to San Diego himself to be closer to his son (see Tropea, 87 NY2d at 740 [“where the custodial parent’s reasons for moving are deemed valid and sound, the court in a proper case might consider the possibility and feasibility of a parallel move by an involved and committed noncustodial parent as an alternative to restricting a custodial parent’s mobility”]; Thompson v Smith, 277 AD2d 520, 522 [2000] [noting the feasibility of a parallel move where the father’s “single lifestyle and his skills as a self-employed machinist and part-time baker are readily transplant-able”])/ — 221 — Further, living in San Diego ensures that the child will grow up in the same house as his half brother (see Matter of Smith v Bonvicino, 50 AD3d 806, 807 [2008] [“the mother demonstrated that the proposed move (to Oklahoma) will allow the child to benefit from an enhanced relationship with her half brother and the improved economic opportunities for the mother”]). The father agreed that it was very important for the child to have a brother in his life. He even testified that he actually expected the child eventually to move to California so that he could be with his brother; the father was merely opposed to the date of the move. The mother established that the child would have access to an education that was just as good as, if not better than, his school in New York. Moreover, she testified that Bonnar’s status as a veteran will allow the child to attend college within the State of California’s university system free of charge. The record also reflects that the mother went out of her way to facilitate communication between the child and his father. The same could not be said of the father with respect to communication between the child and his mother. Finally, the child’s own attorney recommended that the court permit the mother to relocate with the child, a factor that militates in favor of affirming the result the court reached (see Matter of Caravella v Toale, 78 AD3d 828, 828 [2010] [determination that it was in the best interests of the children to allow them to relocate to California where their father lived was consistent with “the recommendation of the court-appointed forensic evaluator, and the position of the attorney for the children, which are entitled to some weight”]; see also Matter of Aruty v Mormando, 70 AD3d 683 [2010]). The dissent’s characterization of the mother as putting her own romantic interests ahead of her son’s welfare is rank speculation. It is just as likely that the mother, herself an only child, was pursuing marriage aggressively to produce a sibling for her son, before he became much older, and an intact family. Regardless of the mother’s motivations, it is the best interest of the child that must guide our decision. Relocation ensures that the child will live in a family that is stable financially. He will be with his brother. The amount of time spent with his father will diminish. However, we find that the visitation schedule, that requires the mother to pay for air travel for the child to be with the father on numerous extended weekend visits throughout the year in addition to extended summer and holiday visits, — 222 — does not deprive the father of the opportunity to maintain a close relationship with his son (see e.g. Matter of Smith, 50 AD3d at 807 [2008] [“While the loss of the father’s weekend and occasional midweek parenting time (due to a move to Oklahama) is not insignificant, the parenting time provided for by the Family Court allows for the continuation of a meaningful relationship between the father and the child”]). Accordingly, the order of the Family Court, Bronx County (Annette L. Guarino, Ref.), entered on or about July 9, 2010, which granted the mother’s petition to modify the judgment of divorce, Supreme Court, Bronx County (Ira Globerman, J.), entered on or about July 13, 2006, to permit her to relocate to California with the parties’ child, should be affirmed, without costs.