Opinion
12-14-2016
In the Matter of Ryan DETWILER, respondent, v. Nancy DETWILER, appellant.
Randy I. Siper, Montgomery, NY, for appellant. Gary Greenwald & Partners, P.C., Chester, NY (Erno Poll of counsel), for respondent. Theoni Stamos–Salotto, Hopewell Junction, NY, attorney for the children.
Randy I. Siper, Montgomery, NY, for appellant.
Gary Greenwald & Partners, P.C., Chester, NY (Erno Poll of counsel), for respondent.
Theoni Stamos–Salotto, Hopewell Junction, NY, attorney for the children.
JOHN M. LEVENTHAL, J.P., JEFFREY A. COHEN, ROBERT J. MILLER, and FRANCESCA E. CONNOLLY, JJ.
Appeal by the mother from an order of the Family Court, Orange County (Lori Currier Woods, J.), entered September 15, 2015. The order, insofar as appealed from, after a hearing, denied the mother's petition to relocate with the children to Missouri and granted the father's petition to modify the custody provisions of an order dated January 17, 2012, so as to award him primary physical custody of the children.
ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.
The parties were married in July 2000, and are the parents of three children. The parties separated in January 2011, and in a custody order entered January 27, 2012, upon the parties' consent, the Family Court awarded them joint legal custody, with physical custody to the mother. The custody order provided the father with visitation every weekday and on Sundays. The order further provided that the mother was to have final decision-making authority after full and meaningful discussion with the father. On or about March 23, 2015, the father filed a petition to modify the prior custody order so as to award him physical custody of one of the children.
On March 27, 2015, the mother relocated with the three children to Missouri without discussing it with the father or the children, and without seeking the permission of the Family Court. Thereafter, on or about April 1, 2015, the father filed an emergency application to have the children returned to New York. After a court appearance on April 24, 2015, the court directed the mother to return the children to New York. The mother returned the children to the father in New York on May 1, 2015.
Thereafter, the mother filed a petition to relocate with the children to Missouri. The father then filed an amended petition, seeking to modify the prior custody order so as to award him primary physical custody of all three children. After a hearing, the Family Court denied the mother's petition and granted the father's petition. The mother appeals.
“A parent seeking leave 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” (Matter of Caruso v. Cruz, 114 A.D.3d 769, 771, 980 N.Y.S.2d 137 ; see Matter of Ventura v. Huggins, 141 A.D.3d 600, 600, 34 N.Y.S.3d 599 ; Matter of Francis–Miller v. Miller, 111 A.D.3d 632, 635, 975 N.Y.S.2d 74 ; Matter of Steadman v. Roumer, 81 A.D.3d 653, 654, 916 N.Y.S.2d 796 ). In determining whether a proposed move is in a child's best interests, courts are “free to consider and give appropriate weight to all of the factors that may be relevant to the determination” (Matter of Tropea v. Tropea, 87 N.Y.2d 727, 740, 642 N.Y.S.2d 575, 665 N.E.2d 145 ; see Matter of Hall v. Hall, 118 A.D.3d 879, 880, 987 N.Y.S.2d 608 ). These factors include, but are not limited to, “each parent's reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the child's future contact with the noncustodial parent, the degree to which the custodial parent's and child's life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements” (Matter of Tropea v. Tropea, 87 N.Y.2d at 740–741, 642 N.Y.S.2d 575, 665 N.E.2d 145 ; see Matter of Ventura v. Huggins, 141 A.D.3d at 600, 34 N.Y.S.3d 599; Matter of Hall v. Hall, 118 A.D.3d at 880–881, 987 N.Y.S.2d 608 ). Inasmuch as “[t]he weighing of these various factors requires an evaluation of the testimony, character and sincerity of all the parties involved” (Eschbach v. Eschbach, 56 N.Y.2d 167, 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ; see Matter of Pietrafesa v. Pietrafesa, 108 A.D.3d 557, 558, 970 N.Y.S.2d 38 ), the Family Court's determination is entitled to deference, and its decision will be upheld if supported by a sound and substantial basis in the record (see Matter of Pietrafesa v. Pietrafesa, 108 A.D.3d at 558, 970 N.Y.S.2d 38 ; Matter of Karen H. v. Maurice G., 101 A.D.3d 1005, 1006, 956 N.Y.S.2d 154 ; Matter of McBryde v. Bodden, 91 A.D.3d 781, 782, 936 N.Y.S.2d 292 ). However, “in relocation determinations, [this Court's] authority is as broad as that of the hearing court” (Matter of Jennings v. Yillah–Chow, 84 A.D.3d 1376, 1377, 924 N.Y.S.2d 519 ; see Matter of Ortiz v. Ortiz, 118 A.D.3d 800, 801, 987 N.Y.S.2d 431 ).
Here, the Family Court's determination that relocation was not in the best interests of the children was supported by a sound and substantial basis in the record. Willful interference with a noncustodial parent's right to visitation is so inconsistent with the best interests of the children as to, per se, raise a strong probability that the offending party is unfit to act as a custodial parent (see Matter of Pettiford v. Clarke, 133 A.D.3d 666, 667, 20 N.Y.S.3d 106 ; Matter of Joosten v. Joosten, 282 A.D.2d 748, 724 N.Y.S.2d 335 ; Matter of Glenn v. Glenn, 262 A.D.2d 885, 887, 692 N.Y.S.2d 520 ; Entwistle v. Entwistle, 61 A.D.2d 380, 384–385, 402 N.Y.S.2d 213 ). The mother's conduct in this case, in relocating with the children to Missouri, without discussing it with the children or the father, or seeking permission of the court, raises a strong probability that she is unfit to continue to act as the custodial parent. The mother also failed to show that the children's lives would be enhanced economically, emotionally, and educationally by the move (see Quinn v. Quinn, 134 A.D.3d 688, 689, 20 N.Y.S.3d 427 ; Matter of Gravel v. Makrianes, 120 A.D.3d 815, 817, 991 N.Y.S.2d 452 ; Matter of McBryde v. Bodden, 91 A.D.3d at 782, 936 N.Y.S.2d 292 ). Any potential benefit in relocation did not justify the drastic reduction in the father's visitation (see Matter of McBryde v. Bodden, 91 A.D.3d at 782, 936 N.Y.S.2d 292 ), and did not justify uprooting the children who had always attended school in the same school district, where they were thriving academically and socially (see Matter of Melgar v. Sevilla, 127 A.D.3d 1092, 1092, 7 N.Y.S.3d 485 ; Matter of Confort v. Nicolai, 309 A.D.2d 861, 861, 766 N.Y.S.2d 63 ).
Moreover, the recommendations of court-appointed experts may be considered in making custody determinations, and such recommendations are entitled to some weight, unless the opinion is contradicted by the record (see Matter of Hall v. Hall, 118 A.D.3d at 882–883, 987 N.Y.S.2d 608 ; Matter of Hamed v. Hamed, 88 A.D.3d 791, 792, 930 N.Y.S.2d 654 ; Matter of Edwards v. Rothschild, 60 A.D.3d 675, 678, 875 N.Y.S.2d 155 ; Young v. Young, 212 A.D.2d 114, 118, 628 N.Y.S.2d 957 ). Here, the opinion of the mental health evaluator, that relocation was not in the children's best interests, was not contradicted by the record.
Viewing the totality of the circumstances, there is a sound and substantial basis for the Family Court's determination that there was a change in circumstances such that a modification of custody was necessary to ensure the best interests and welfare of the children (see Eschbach v.
Eschbach, 56 N.Y.2d at 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ; Matter of Ruiz v. Sciallo, 127 A.D.3d 1205, 1206–1207, 7 N.Y.S.3d 511 ). Accordingly, we decline to disturb the court's determination granting the father's petition to modify the custody provisions set forth in the order dated January 17, 2012, so as to award him physical custody of the children.
The mother's further contention that the Family Court was biased against her in the conduct of the hearing is without merit. When a claim of bias is raised, the inquiry on appeal is limited to whether the court's “bias, if any, unjustly affected the result to the detriment of the [mother]” (Matter of Baby Girl Z. [Yaroslava Z.], 140 A.D.3d 893, 894, 35 N.Y.S.3d 129 [internal quotation marks omitted] ). A review of the record shows that the court listened to the testimony, treated the parties fairly, and, contrary to the mother's contention, did not have a predetermined outcome of the case in mind during the hearing (see id. ; Matter of Bowe v. Bowe, 124 A.D.3d 645, 646, 1 N.Y.S.3d 301 ).