Opinion
2012-04-20
In the Matter of Uchenna R. BARLOW, petitioner-appellant, v. Donald C. SMITH, respondent-respondent.
Appeal from an order of the Family Court, Erie County (E. Jeannette Ogden, A.J.), entered March 25, 2011 in a proceeding pursuant to Family Court Act article 6. The order denied the amended petition.Timothy R. Lovallo, Buffalo, for petitioner-appellant. Evelyne A. O'Sullivan, East Amherst, for respondent-respondent.
Appeal from an order of the Family Court, Erie County (E. Jeannette Ogden, A.J.), entered March 25, 2011 in a proceeding pursuant to Family Court Act article 6. The order denied the amended petition.Timothy R. Lovallo, Buffalo, for petitioner-appellant. Evelyne A. O'Sullivan, East Amherst, for respondent-respondent. Noemi Fernandez–Hiltz, Attorney for the Children, Buffalo, for Aaliyah A.S. and Briante S.MEMORANDUM:
Petitioner mother appeals from an order that denied her amended petition seeking to modify a prior order of custody and visitation by granting permission for the parties' children to relocate with her to Detroit, Michigan. We affirm. “In seeking such permission, the mother was required to establish by a preponderance of the evidence that the proposed relocation would be in the [children's] best interests” ( Matter of Webb v. Aaron, 79 A.D.3d 1761, 913 N.Y.S.2d 847; see Matter of Tropea v. Tropea, 87 N.Y.2d 727, 741, 642 N.Y.S.2d 575, 665 N.E.2d 145), and the mother failed to meet that burden. Contrary to the mother's contention, Family Court “properly considered the relevant factors set forth in Tropea ” ( Matter of Murphy v. Peace, 72 A.D.3d 1626, 1626, 899 N.Y.S.2d 493). In considering those factors, “the court properly determined that the mother failed to establish that her [children's lives] and her own life would ‘be enhanced economically, emotionally and educationally by the [relocation]’ ” ( Webb, 79 A.D.3d at 1761, 913 N.Y.S.2d 847, quoting Tropea, 87 N.Y.2d at 741, 642 N.Y.S.2d 575, 665 N.E.2d 145; see Murphy, 72 A.D.3d at 1626–1627, 899 N.Y.S.2d 493; Matter of Jones v. Tarnawa, 26 A.D.3d 870, 871, 809 N.Y.S.2d 742, lv. denied 6 N.Y.3d 714, 816 N.Y.S.2d 749, 849 N.E.2d 972). The court also “properly determined that the children's relationship with respondent [father] would be adversely affected by the proposed relocation because of the distance between [Erie] County and [Detroit]” ( Jones, 26 A.D.3d at 871, 809 N.Y.S.2d 742; see Matter of Ramirez v. Velazquez, 91 A.D.3d 1346, 1347, 937 N.Y.S.2d 504; Webb, 79 A.D.3d at 1761–1762, 913 N.Y.S.2d 847), and “the mother failed to establish that there was a visitation arrangement that would be conducive to the maintenance of a close relationship between the [children] and the father” ( Webb, 79 A.D.3d at 1762, 913 N.Y.S.2d 847; see Matter of Wood v. Hargrave, 292 A.D.2d 795, 796, 739 N.Y.S.2d 331, lv. denied 98 N.Y.2d 608, 746 N.Y.S.2d 692, 774 N.E.2d 757; cf. Matter of Parish A. v. Jamie T., 49 A.D.3d 1322, 1323–1324, 853 N.Y.S.2d 795; see generally Tropea, 87 N.Y.2d at 738, 642 N.Y.S.2d 575, 665 N.E.2d 145). Finally, the court identified the existence of an additional relevant factor in this case that weighs against the proposed relocation, i.e., the absence of evidence to suggest that the mother made any attempt to secure mental health services in Detroit ( see generally Tropea, 87 N.Y.2d at 740, 642 N.Y.S.2d 575, 665 N.E.2d 145).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.