Opinion
1246 CAF 18–01125
12-20-2019
In the Matter of Nicole L. JOHNSTON, Petitioner–Appellant, v. Todd E. DICKES, Respondent–Respondent.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF COUNSEL), FOR PETITIONER–APPELLANT. FITZGERALD MEDIATION PLLC, ROCHESTER (NICOLE A. FITZGERALD OF COUNSEL), FOR RESPONDENT–RESPONDENT. ELIZABETH deV. MOELLER, ROCHESTER, ATTORNEY FOR THE CHILD.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF COUNSEL), FOR PETITIONER–APPELLANT.
FITZGERALD MEDIATION PLLC, ROCHESTER (NICOLE A. FITZGERALD OF COUNSEL), FOR RESPONDENT–RESPONDENT.
ELIZABETH deV. MOELLER, ROCHESTER, ATTORNEY FOR THE CHILD.
PRESENT: WHALEN, P.J., SMITH, CURRAN, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is denied, the petition is reinstated and the matter is remitted to Family Court, Monroe County, for further proceedings on the petition.
Memorandum: In this proceeding pursuant to Family Court Act article 6, we agree with petitioner mother that Family Court erred in summarily granting respondent father's motion to dismiss her petition to relocate with the parties' child to the Honeoye Falls–Lima Central School District or Livingston County. A prior custody order entered upon the consent of the parties provided that the mother and the father had joint custody of the child with primary physical residence with the mother, and restricted the mother's residency to certain towns within Monroe County. "Generally, ‘[d]eterminations affecting custody and visitation should be made following a full evidentiary hearing’ " ( Lauzonis v. Lauzonis, 120 A.D.3d 922, 923, 992 N.Y.S.2d 586 [4th Dept. 2014] ; see Matter of Naughton–General v. Naughton , 242 A.D.2d 937, 938, 662 N.Y.S.2d 956 [4th Dept. 1997] ), and we conclude that the allegations in the mother's petition "established the need for a hearing on the issue whether [her] relocation is in the best interests of the child" ( Matter of Stevens v. Stevens , 286 A.D.2d 890, 890, 730 N.Y.S.2d 751 [4th Dept. 2001] ; see Liverani v. Liverani, 15 A.D.3d 858, 858–859, 788 N.Y.S.2d 874 [4th Dept. 2005] ).
On a motion to dismiss a pleading pursuant to CPLR 3211(a)(7), the court must give the pleading a liberal construction, accept the facts alleged therein as true, accord the nonmoving party the benefit of every favorable inference, and determine only whether the facts as alleged fit within a cognizable legal theory (see Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994] ; Matter of McBride v. Springsteen–El , 106 A.D.3d 1402, 1402, 967 N.Y.S.2d 768 [3d Dept. 2013] ). The mother was not required to demonstrate a change of circumstances inasmuch as she sought permission to relocate with the subject child (see Matter of Betts v. Moore , 175 A.D.3d 874, 874–875, 108 N.Y.S.3d 573 [4th Dept. 2019] ; Lauzonis, 120 A.D.3d at 923, 992 N.Y.S.2d 586 ; Matter of Chancer v. Stowell , 5 A.D.3d 1082, 1083, 773 N.Y.S.2d 702 [4th Dept. 2004] ). Further, the mother adequately alleged in her petition that relocation was in the best interests of the child inasmuch as she alleged that the cost of housing would be lower in Livingston County, that the child's maternal grandfather would be able to assist the mother with childcare upon her relocation allowing her to return to work, and that the relocation would not interfere with the father's visitation schedule. The court was therefore required to determine whether the proposed relocation was in the child's best interests by analyzing the factors set forth in Matter of Tropea v. Tropea . 87 N.Y.2d 727, 739–741, 642 N.Y.S.2d 575, 665 N.E.2d 145 (1996) ; see generally Matter of Adams v. Bracci , 91 A.D.3d 1046, 1046–1047, 936 N.Y.S.2d 738 (3d Dept. 2012), lv denied 18 N.Y.3d 809, 2012 WL 1033620 (2012).