Opinion
10559
12-12-2019
In re CATHERINE L., Petitioner–Appellant, v. JEFFREY S., Respondent–Respondent.
Law Offices of Randall S. Carmel, Jericho (Randall S. Carmel of counsel), for appellant. The Law Offices of Salihah R. Denman, PLLC, Harrison (Salihah R. Denman of counsel), for respondent. Karen Freedman, Lawyers for Children, Inc, New York (Shirim Nothenberg of counsel), attorney for the child.
Law Offices of Randall S. Carmel, Jericho (Randall S. Carmel of counsel), for appellant.
The Law Offices of Salihah R. Denman, PLLC, Harrison (Salihah R. Denman of counsel), for respondent.
Karen Freedman, Lawyers for Children, Inc, New York (Shirim Nothenberg of counsel), attorney for the child.
Richter, J.P., Manzanet–Daniels, Webber, Gesmer, JJ.
Order, Family Court, New York County (Clark V. Richardson, J.), entered on or about July 26, 2018, which, to the extent appealed from as limited by the briefs, after a hearing, granted petitioner father's petition to relocate with the parties' child to Georgia, unanimously modified, on the law, to the extent of remanding the matter for further proceedings to determine an appropriate visitation schedule, and otherwise affirmed, without costs.
The court considered all of the relevant factors and properly concluded that the proposed relocation would serve the child's best interests (see Matter of Tropea v. Tropea , 87 N.Y.2d 727, 739–741, 642 N.Y.S.2d 575, 665 N.E.2d 145 [1996] ). The father has been the child's primary caregiver for the past four years, and the father showed that a move to Georgia would improve the child's quality of life (see Matter of Kevin McK. v. Elizabeth A.E. , 111 A.D.3d 124, 131, 972 N.Y.S.2d 25 [1st Dept. 2013] ; Matter of Melissa Marie G. v. John Christopher W. , 73 A.D.3d 658, 901 N.Y.S.2d 275 [1st Dept. 2010] ]. The father has also demonstrated a commitment to fostering a relationship between the child and the mother (see Sonbuchner v. Sonbuchner , 96 A.D.3d 566, 567, 947 N.Y.S.2d 80 [1st Dept. 2012] ).
However, Family Court erred in failing to determine an appropriate visitation plan. Given the parties' historic difficulty communicating with each other and the mother's history of mental illness that led to the child's removal from her care and which was untreated at the time of trial, it was unrealistic to expect the parties to cooperate in effectuating appropriate visitation (see Spencer v. Killoran , 147 A.D.3d 862, 863, 46 N.Y.S.3d 658 [2d Dept. 2017] ). Moreover, Family Court's order essentially delegated the court's authority to determine visitation to the father, which it may not do ( In re Izrael J. , 149 A.D.3d 630, 51 N.Y.S.3d 88 [1st Dept. 2017] ).