Opinion
9740
06-27-2019
In re CHRISTINA T., Petitioner–Appellant, v. THOMAS C.T., Respondent–Respondent.
Andrew J. Baer, New York, appellant. Law Offices of Randall S. Carmel, Jericho (Randall S. Carmel of counsel), for respondent. Carol L. Kahn, New York, attorney for the child.
Andrew J. Baer, New York, appellant.
Law Offices of Randall S. Carmel, Jericho (Randall S. Carmel of counsel), for respondent.
Carol L. Kahn, New York, attorney for the child.
Sweeny, J.P., Renwick, Webber, Oing, JJ.
Order, Family Court, Bronx County (Lisa S. Headley, J.), entered on or about August 13, 2018, which, after a hearing, granted respondent father's motion to dismiss the petition to modify a prior custody order for failure to state a cause of action and failure to prove a change in circumstances, unanimously affirmed, without costs.
Viewing the evidence in the light most favorable to petitioner mother, we agree that she failed to make a prima facie showing that modification of the custody order was warranted on any of the grounds alleged in the petition (see Matter of Samuel A. v. Aidarina S., 99 A.D.3d 420, 421, 951 N.Y.S.2d 157 [1st Dept. 2012] ; Matter of Juelle G. v. William C., 96 A.D.3d 538, 949 N.Y.S.2d 13 [1st Dept. 2012] ; Matter of Patricia C. v. Bruce L., 46 A.D.3d 399, 399, 848 N.Y.S.2d 102 [1st Dept. 2007] ). The record contains no evidence that the father was homeless and the mother herself acknowledged that he had a permanent address. The Family Court properly concluded that relocation by the father to New Jersey was permitted under the parties' 2016 custody and visitation stipulation (see West v. Vanderhorst, 92 A.D.3d 615, 939 N.Y.S.2d 378 [1st Dept. 2012] ; Matter of Martin R.G. v. Ofelia G.O., 24 A.D.3d 305, 306, 809 N.Y.S.2d 1 [1st Dept. 2005] ). The record is also clear that the mother had not been denied meaningful access to her son after the father's relocation to New Jersey and her parenting access schedule remained the same (see Matter of Daniel R. v. Liza R., 309 A.D.2d 714, 766 N.Y.S.2d 182 [1st Dept. 2003] ). Lastly, the record established that the child was doing better academically at the new school in New Jersey.
The mother's argument that the deterioration of the parents' relationship constituted a change in circumstances is unpreserved for appellate review (see Roberta P. v. Vanessa J.P., 140 A.D.3d 457, 459, 31 N.Y.S.3d 507 [1st Dept. 2016], lv denied 28 N.Y.3d 904, 2016 WL 6113618 [2016] ), and we decline to review it in the interest of justice.