Opinion
05-22-2024
In the Matter of John BROWN, appellant, v. Iris MCGHEE, respondent.
Larry S. Bachner, New York, NY, for appellant. Emily Olshansky, New York, NY, for respondent. Austin I. Idehen, Jamaica, NY, attorney for the children.
Larry S. Bachner, New York, NY, for appellant.
Emily Olshansky, New York, NY, for respondent.
Austin I. Idehen, Jamaica, NY, attorney for the children.
BETSY BARROS, J.P., LINDA CHRISTOPHER, BARRY E. WARHIT, CARL J. LANDICINO, JJ.
DECISION & ORDER
In a proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Queens County (Lauren Norton-Lerner, Ct. Atty. Ref.), dated November 2, 2022. The order, after a hearing, denied the father’s petition to modify the custody provisions of the parties’ judgment of divorce so as to award him sole legal and physical custody of the parties’ children and to permit him to relocate with them to Pennsylvania.
ORDERED that the order is affirmed, without costs or disbursements.
The parties, who were married, have two children in common, born in 2010 and 2012. The parties were divorced by a judgment dated August 20, 2014. The judgment of divorce awarded sole custody of the children to the mother, with parental access to the father. In June 2019, the father filed a petition to modify the custody provisions of the judgment of divorce so as to award him sole legal and physical custody of the children and to permit him to relocate with them to Pennsylvania. In an order dated November 2, 2022, the Family Court, after a hearing, denied the petition. The father appeals.
"In order to modify an existing custody arrangement, there must be a showing of a subsequent change in circumstances so that modification is required to protect the best interest[s] of the child" (Matter of Walker v. Sterkowicz–Walker, 203 A.D.3d 1165, 1166, 163 N.Y.S.3d 441; see Matter of Barrow v. Carcaterra, 210 A.D.3d 889, 890, 177 N.Y.S.3d 724). "Similarly, a parent seeking to relocate with a child bears the burden of establishing by a preponderance of the evidence that the proposed move would be in the child’s best interests" (Jacobson v. Jacobson, 222 A.D.3d 847, 848, 199 N.Y.S.3d 701 [internal quotation marks omitted]; see Matter of Heppler v. Oelsner, 217 A.D.3d 767, 768, 191 N.Y.S.3d 445). "Since custody determinations turn in large part on assessments of the credibility, character, temperament and sincerity of the parties, the court’s determination should not be disturbed unless it lacks a sound and substantial basis in the record" (Lashlee v. Lashlee, 161 A.D.3d 843, 843, 73 N.Y.S.3d 441; see Matter of Barrow v. Carcaterra, 210 A.D.3d at 890, 177 N.Y.S.3d 724). The Family Court’s determination denying the father’s petition to modify the custody provisions of the judgment of divorce so as to award him sole legal and physical custody of the children and to permit him to relocate with them to Pennsylvania has a sound and substantial basis in the record and will not be disturbed (see Matter of Barrow v. Carcaterra, 210 A.D.3d at 890, 177 N.Y.S.3d 724; Matter of Picitelli v. Carbone, 208 A.D.3d 582, 584, 172 N.Y.S.3d 714).
The father’s remaining contentions are either without merit or improperly raised for the first time in his reply brief.
BARROS, J.P., CHRISTOPHER, WARHIT and LANDICINO, JJ., concur.