Opinion
2015-02835, Index No. 200715/07.
05-18-2016
Lizbeth MARTIN, respondent, v. Stephen H. MARTIN, appellant.
Alan C. Stein, P.C., Woodbury, N.Y., for appellant. Lizbeth Pagan–Martin, suing herein as Lizbeth Martin, Garden City, N.Y., respondent pro se. Gail Jacobs, Great Neck, N.Y., attorney for the children.
Alan C. Stein, P.C., Woodbury, N.Y., for appellant.
Lizbeth Pagan–Martin, suing herein as Lizbeth Martin, Garden City, N.Y., respondent pro se.
Gail Jacobs, Great Neck, N.Y., attorney for the children.
WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, THOMAS A. DICKERSON, and FRANCESCA E. CONNOLLY, JJ.
Opinion Appeal from an order of the Supreme Court, Nassau County (Marie F. McCormack, Ct. Atty. Ref.), dated March 23, 2015. The order, insofar as appealed from, after a hearing, granted the mother's motion to modify the custody provisions of a stipulation of settlement dated April 24, 2008, so as to award her sole legal and physical custody of the parties' children, and to permit her to relocate with the children to Florida, and, in effect, denied the father's cross motion for sole legal and physical custody of the children.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The parties were married and have three children together. In April 2008, the parties entered into a stipulation of settlement, which provided that they would have joint custody of the children. In September 2008, the parties entered into a stipulation setting forth a parenting schedule. The parties were divorced by a judgment dated October 22, 2008, which incorporated but did not merge the terms of both stipulations. In December 2011, the mother moved to modify the custody provisions of the stipulation of settlement so as to award her sole legal and physical custody of the children, and to permit her to relocate with the children to Florida, where her extended family lives. The father cross-moved for sole legal and physical custody of the children and opposed the relocation. After a hearing, the Supreme Court granted the mother's motion, awarding her sole legal and physical custody of the children and permitting her to relocate with them, and, in effect, denied the father's cross motion. The father appeals.
The Supreme Court did not err in granting that branch of the mother's motion which was for a modification, as the mother established that there had been a change in circumstances such that modification was necessary to ensure the continued best interests of the children (see Matter of Bathjer v. McCrae, 136 A.D.3d 688, 689, 24 N.Y.S.3d 217 ; Matter of Moore v. Gonzalez, 134 A.D.3d 718, 21 N.Y.S.3d 292 ). The continued deterioration of the parties' relationship is a change in circumstances warranting a change in the present joint custody arrangement (see Matter of Moore v. Gonzalez, 134 A.D.3d 718, 21 N.Y.S.3d 292 ; Anonymous 2011–1 v. Anonymous 2011–2, 102 A.D.3d 640, 958 N.Y.S.2d 181 ). Joint custody is appropriate between relatively stable, amicable parents who behave in a mature and civilized fashion (see Braiman v. Braiman, 44 N.Y.2d 584, 589–590, 407 N.Y.S.2d 449, 378 N.E.2d 1019 ; Matter of Chichilnitskiy v. Faiman, 119 A.D.3d 681, 989 N.Y.S.2d 617 ; Irizarry v. Irizarry, 115 A.D.3d 913, 982 N.Y.S.2d 581 ; Matter of Lawrence v. Davidson, 109 A.D.3d 826, 971 N.Y.S.2d 62 ). Joint custody is inappropriate where, as here, the parties are antagonistic toward each other and have demonstrated an inability to cooperate on matters concerning their children (see Matter of Moore v. Gonzalez, 134 A.D.3d at 720, 21 N.Y.S.3d 292; Matter of Florio v. Niven, 123 A.D.3d 708, 997 N.Y.S.2d 728 ; Matter of Lawrence v. Davidson, 109 A.D.3d at 826, 971 N.Y.S.2d 62 ). The court did not err in concluding that it would be in the best interests of the children to award sole legal and physical custody to the mother (see Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ). There is no basis to disturb the court's credibility determinations, which are supported by a sound and substantial basis in the record (see Matter of Yasus v. Yasus, 69 A.D.3d 738, 893 N.Y.S.2d 219 ; Matter of Oates v. Wilson, 46 A.D.3d 904, 848 N.Y.S.2d 704 ).
The mother's desire to relocate also constituted a change in circumstances, requiring the mother to demonstrate that relocation was in the children's best interests (see Matter of Estevez v. Perez, 123 A.D.3d 707, 998 N.Y.S.2d 413 ; Matter of Katz v. Shomron, 116 A.D.3d 777, 982 N.Y.S.2d 901 ; see also Matter of Barner v.
Hampton, 132 A.D.3d 1098, 18 N.Y.S.3d 199 ). In determining a parent's relocation request, a court is free to consider and give appropriate weight to all of the factors that may be relevant to the determination, including, but not limited to, each parent's reasons for seeking or opposing the move, the quality of the relationships between the child and each parent, the impact of the move on the quantity and quality of the child's future contact with the noncustodial parent, the degree to which the custodial parent's and child's lives may be enhanced economically, emotionally, and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements. In the end, it is for the court to determine, based on all of the proof, whether it has been established by a preponderance of the evidence that a proposed relocation would serve the child's best interests (see Tropea v. Tropea, 87 N.Y.2d 727, 740–741, 642 N.Y.S.2d 575, 665 N.E.2d 145 ). Here, the mother established by a preponderance of the evidence that relocation would be in the children's best interests, taking into account all of the relevant factors.