Opinion
15138 Index No. 300055/14 Case No. 2020–03208
01-25-2022
Anna LVOVSKY, Plaintiff–Respondent, v. Gennady LVOVSKY, Defendant–Appellant.
Sol Kodsi, New York, for appellant. The Wallack Firm, P.C., New York (Michael Belmont of counsel), for respondent.
Sol Kodsi, New York, for appellant.
The Wallack Firm, P.C., New York (Michael Belmont of counsel), for respondent.
Gische, J.P., Webber, Mendez, Rodriguez, Pitt, JJ.
Order, Supreme Court, New York County (Tandra L. Dawson, J.), entered January 28, 2020, which, after a custody trial, awarded plaintiff mother sole legal and physical custody of the children with permission to relocate to Ottawa, Canada, unanimously affirmed, without costs.
The award of sole custody of the children to the mother has a sound and substantial basis (see Matter of Salena S. v. Ahmad G., 152 A.D.3d 162, 58 N.Y.S.3d 35 [1st Dept. 2017] ). Upon consideration of the relevant factors, the court properly concluded that the children's best interests would be served by remaining with the mother, who had acted as their primary caretaker since commencement of the action in 2014 and made all major decisions pertaining to the children's education, health, and care (see generally Matter of Louise E.S. v. W. Stephen S., 64 N.Y.2d 946, 947, 488 N.Y.S.2d 637, 477 N.E.2d 1091 [1985] ). Contrary to the father's contention, the court-appointed forensic evaluator's opinion that the father should have "significant amounts of time" with the children was not determinative of the parties’ dispute. We note that the expert's conclusions were issued over three years before the court's custody order (see Matter of Dawn S. v. Michael L. Y., 184 A.D.3d 462, 463, 123 N.Y.S.3d 827 [1st Dept. 2020] ). After the forensic expert's report was issued, defendant's conduct prompted the court to order that his access with the children be supervised, and he was held in contempt and incarcerated for his failure to comply with his pendente lite support obligations.
The court properly weighed relocation as a factor in the children's best interests, and we find no basis to disturb its credibility determinations (see Matter of Michael B. [Lillian B.], 145 A.D.3d 425, 430, 42 N.Y.S.3d 141 [1st Dept. 2016] ). The mother testified that the children's quality of life would significantly improve if they moved to Ottawa, Canada, where she would have greater job opportunities, as well as the financial and emotional support of her parents, with whom the children have a close relationship. Moreover, the court properly considered the father's failure to pay pendente lite support as a factor in favor of granting the mother's application for relocation (see Matter of Nairen McI. v. Cindy J., 137 A.D.3d 694, 695, 27 N.Y.S.3d 854 [1st Dept. 2016] ).