Opinion
1459 CAF 17–01277
12-21-2018
In the Matter of William J. TOWNSEND III, Petitioner–Respondent, v. Rashida MIMS, Respondent–Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (DANIELLE K. BLACKABY OF COUNSEL), FOR RESPONDENT–APPELLANT. STUART J. LAROSE, SYRACUSE, ATTORNEY FOR THE CHILDREN.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (DANIELLE K. BLACKABY OF COUNSEL), FOR RESPONDENT–APPELLANT.
STUART J. LAROSE, SYRACUSE, ATTORNEY FOR THE CHILDREN.
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to Family Court Act article 6, respondent mother appeals from an order that, inter alia, granted the amended cross petition of petitioner father seeking to modify a prior order of custody and visitation by allowing the parties' teenage children to relocate with him to North Carolina. We affirm.
Contrary to the mother's contention, upon our review of the relevant factors (see generally Matter of Tropea v. Tropea, 87 N.Y.2d 727, 740–741, 642 N.Y.S.2d 575, 665 N.E.2d 145 [1996] ), we conclude that the father met his burden of demonstrating by a preponderance of the evidence that the proposed relocation is in the children's best interests. The father established that the proposed relocation would enhance the children's lives economically, emotionally, and educationally, inasmuch as, among other things, the father and the children would unite under a single household with the father's new wife and her daughter, with whom the children are close, thereby allowing for the combination of two incomes and consolidation of household expenses (see Matter of Bobroff v. Farwell, 57 A.D.3d 1284, 1286, 870 N.Y.S.2d 559 [3d Dept. 2008] ; Matter of Scialdo v. Cook, 53 A.D.3d 1090, 1092, 862 N.Y.S.2d 238 [4th Dept. 2008] ). The father, who was the children's primary caretaker, also has another child in North Carolina with whom the children have a close relationship (see generally Scialdo, 53 A.D.3d at 1092, 862 N.Y.S.2d 238 ). In addition, the children expressed their desire to relocate with the father to North Carolina and, " ‘[w]hile the express wishes of children are not controlling, they are entitled to great weight, particularly where[, as here,] their age and maturity ... make[s] their input particularly meaningful’ " ( Matter of Minner v. Minner, 56 A.D.3d 1198, 1199, 867 N.Y.S.2d 601 [4th Dept. 2008] ). Although the relocation will affect the frequency of the mother's visitation, the father demonstrated his willingness to foster communication and to facilitate extended visitation during school recesses and summer vacation, including by bearing the costs and responsibility for transportation, that will enable the mother "to maintain a positive nurturing relationship" with the children ( Tropea, 87 N.Y.2d at 740, 642 N.Y.S.2d 575, 665 N.E.2d 145 ; see Scialdo, 53 A.D.3d at 1092, 862 N.Y.S.2d 238 ; Matter of Boyer v. Boyer, 281 A.D.2d 953, 953, 722 N.Y.S.2d 322 [4th Dept. 2001] ).