Opinion
05-30-2024
In the Matter of BRANDON D., Petitioner/Respondent–Respondent, v. EMELY A., Respondent/Petitioner–Appellant.
Law Office of Thomas R. Villecco, P.C., Jericho (Thomas R. Villecco of counsel), for appellant. Donna C. Chin, New York, attorney for the child.
Law Office of Thomas R. Villecco, P.C., Jericho (Thomas R. Villecco of counsel), for appellant.
Donna C. Chin, New York, attorney for the child.
Moulton, J.P., Scarpulla, Shulman, Higgitt, O’Neill Levy, JJ.
Order, Family Court, Bronx County (Robert T. Johnson, J.), entered on or about April 25, 2023, which, to the extent appealed from as limited by the briefs, following a fact-finding hearing, granted petitioner father’s petition for sole physical custody of the parties’ child, unanimously affirmed, without costs.
Order, same court and Judge, entered on or about April 25, 2023, which dismissed the mother’s cross-petition for custody and permission to relocate with the child to Florida, unanimously affirmed, without costs.
[1, 2] Because this case involved an initial custody determination, the court correctly determined that the relocation factors set forth in (Matter of Tropea v. Tropea, 87 N.Y.2d 727, 642 N.Y.S.2d 575, 665 N.E.2d 145 [1986]), do not govern and that the "effect of the mother’s relocation is but one factor in determining the [child’s] best interests" (Matter of Ulises R. v. Elizabeth H.T., 217 A.D.3d 639, 639, 192 N.Y.S.3d 124 [1st Dept. 2023]; see Matter of Mathiew v. Michels, 180 A.D.3d 403, 403, 118 N.Y.S.3d 581 [1st Dept. 2020]). The court’s determination to grant the father sole physical custody of the child in New York has a sound and substantial basis in the record (see Melissa CD. v. Rene I.D., 117 A.D.3d 407, 985 N.Y.S.2d 28 [1st Dept. 2009]). The credible evidence shows that, while both parents loved and cared for the child, for the past several years, the father has been the child’s primary caregiver, and has met all of her physical, and emotional needs. The father also has the assistance of the paternal grandmother, who has a close relationship with the child, and has consistently worked and provided financially for the child.
In contrast, in moving to Florida, primarily to be with her church, the mother placed her own interests above the child’s (see Matter of Adriano D. v. Yolanda A., 94 A.D.3d 448, 449, 941 N.Y.S.2d 150 [1st Dept. 2012]). Further, the mother’s unilateral decision to relocate to Florida, without informing the father or the court, interrupted the child’s relationship with the father and violated the temporary visitation order (see Matter of Oscar S. v. Joyesha J., 149 A.D.3d 439, 52 N.Y.S.3d 28 [1st Dept. 2017]; Matter of Anthony G. v. Stephanie H., 189 A.D.3d 615, 134 N.Y.S.3d 712 [1st Dept. 2020]). The mother did not provide any evidence that a move to Florida was an economic or lifestyle improvement for the child, as she had not found a job and was living in an apartment with multiple relatives (see Matter of Yamilly M.S. v. Ricardo A.S., 137 A.D.3d 459, 459, 26 N.Y.S.3d 278 [1st Dept. 2016]).
On this record, there is no reason to disturb the court’s credibility findings (see Matter of Ulises R., 217 A.D.3d 639, 640, 192 N.Y.S.3d 124). We have considered the mother’s remaining arguments and find them unavailing.