Opinion
2012-01-31
In the Matter of Brooke SWEETSER, respondent, v. Timothy M. WILLIS, appellant.
Long, Tuminello, Besso, Seligman, Werner & Sullivan, LLP, Bay Shore, N.Y. (Karen S. Svendsen of counsel), for appellant. Diane B. Groom, Central Islip, N.Y., attorney for the children.
Long, Tuminello, Besso, Seligman, Werner & Sullivan, LLP, Bay Shore, N.Y. (Karen S. Svendsen of counsel), for appellant. Diane B. Groom, Central Islip, N.Y., attorney for the children.
DANIEL D. ANGIOLILLO, J.P., ANITA R. FLORIO, CHERYL E. CHAMBERS, and L. PRISCILLA HALL, JJ.
In a child custody proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Suffolk County (Boggio, Ct. Atty. Ref.), dated March 7, 2011, which, after a hearing, granted that branch of the mother's petition which was for permission to relocate with the children to Southampton, New York.
ORDERED that the order is affirmed, without costs or disbursements.
“To modify an existing custody arrangement, there must be a showing of a change in circumstances” ( Matter of Englese v. Strauss, 83 A.D.3d 705, 706, 920 N.Y.S.2d 365; see Matter of Harding v. Harding, 84 A.D.3d 1086, 1086, 923 N.Y.S.2d 851). Since the mother was seeking permission to relocate, she bore the burden of proof by a preponderance of the evidence ( see Matter of Harding v. Harding, 84 A.D.3d at 1086, 923 N.Y.S.2d 851; Matter of Englese v. Strauss, 83 A.D.3d at 706, 920 N.Y.S.2d 365). A custodial parent's request to relocate “must be considered on its own merits with due consideration of all the relevant facts and circumstances and with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child” ( Matter of Tropea v. Tropea, 87 N.Y.2d 727, 739, 642 N.Y.S.2d 575, 665 N.E.2d 145; see Matter of Harding v. Harding, 84 A.D.3d at 1086, 923 N.Y.S.2d 851). Moreover, “[s]ince the Family Court's custody determination is largely dependent upon an assessment of the credibility of the witnesses and upon the character, temperament, and sincerity of the parents, its determination should not be disturbed unless it lacks a sound and substantial basis in the record” ( Matter of Plaza v. Plaza, 305 A.D.2d 607, 607, 759 N.Y.S.2d 368; see Matter of Harding v. Harding, 84 A.D.3d at 1086, 923 N.Y.S.2d 851).
Here, the mother established by a preponderance of the evidence that there was a change in circumstances and that her relocation with the children to Southampton, New York, 55 miles from their current residence in Huntington, New York, was in the children's best interests ( see Matter of Tropea v. Tropea, 87 N.Y.2d at 739, 642 N.Y.S.2d 575, 665 N.E.2d 145; Matter of Harding v. Harding, 84 A.D.3d at 1086, 923 N.Y.S.2d 851; see also Matter of Mooney v. Ferone, 34 A.D.3d 679, 680, 825 N.Y.S.2d 495; cf. Schwartz v. Schwartz, 70 A.D.3d 923, 923–925, 895 N.Y.S.2d 206; Matter of Friedman v. Rome, 46 A.D.3d 682, 683, 847 N.Y.S.2d 616). Contrary to the father's contention, the Family Court's determination does not lack a sound and substantial basis in the record.
The father's remaining contention is without merit.