Opinion
363 CAF 16-00399.
03-31-2017
In the Matter of Ryan J. FISHER, Petitioner–Respondent, v. Leslie A. FISHER, Respondent–Appellant. In the Matter of Leslie A. Fisher, Petitioner–Appellant, v. Ryan J. Fisher, Respondent–Respondent.
Michael Steinberg, Rochester, for Respondent–Appellant and Petitioner–Appellant. Norman P. Effman, Public Defender, Warsaw (Adam W. Koch of Counsel), for Petitioner–Respondent and Respondent–Respondent. Mary Anne Connell, Attorney for The Child, Buffalo.
Michael Steinberg, Rochester, for Respondent–Appellant and Petitioner–Appellant.
Norman P. Effman, Public Defender, Warsaw (Adam W. Koch of Counsel), for Petitioner–Respondent and Respondent–Respondent.
Mary Anne Connell, Attorney for The Child, Buffalo.
PRESENT: CENTRA, J.P., PERADOTTO, DeJOSEPH, CURRAN, AND SCUDDER, JJ.
MEMORANDUM:
On appeal from an order that, inter alia, awarded the parties joint custody of their child and ordered that the child's residence remain in New York, respondent-petitioner mother contends that Family Court erred in failing to award her primary physical residence with permission to relocate to Texas. We affirm.
"Inasmuch as this case involves an initial custody determination, ‘it cannot properly be characterized as a relocation case to which the application of the factors set forth in Matter of Tropea v. Tropea , 87 N.Y.2d 727, 740–741, 642 N.Y.S.2d 575, 665 N.E.2d 145 (1996) need be strictly applied’ " (Forrestel v. Forrestel, 125 A.D.3d 1299, 1299, 3 N.Y.S.3d 483, lv. denied 25 N.Y.3d 904, 2015 WL 2026161 ). " ‘Although a court may consider the effect of a parent's [proposed] relocation as part of a best interests analysis, relocation is but one factor among many in its custody determination’ " (id. at 1299–1300, 3 N.Y.S.3d 483 ). We reject the mother's contention that Family Court required her to establish by a preponderance of the evidence that her proposed relocation to Texas was in the best interests of the child, thereby imposing an improper burden of proof (cf. Matter of Saperston v. Holdaway, 93 A.D.3d 1271, 1272, 940 N.Y.S.2d 728, appeal dismissed 19 N.Y.3d 887, 948 N.Y.S.2d 577, 971 N.E.2d 858, 20 N.Y.3d 1052, 961 N.Y.S.2d 828, 985 N.E.2d 423). Rather, we conclude that the court, in evaluating the mother's proposed relocation as part of the best interests analysis, properly weighed that factor against the mother upon determining that the child's relationship with petitioner-respondent father would be adversely affected by the proposed relocation because of the distance between western New York and Texas (see Forrestel, 125 A.D.3d at 1300, 3 N.Y.S.3d 483 ). Contrary to the mother's further contention, upon weighing the other relevant factors (see Fox v. Fox, 177 A.D.2d 209, 210, 582 N.Y.S.2d 863 ), we conclude that the court's determination that the child's best interests would be served by awarding joint custody to the parties with continued residence in New York is supported by a sound and substantial basis in the record and should not be disturbed (see Forrestel, 125 A.D.3d at 1299, 3 N.Y.S.3d 483 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.