Opinion
April 1, 1985
Appeal from the Family Court, Suffolk County (England, J.).
Order affirmed, without costs or disbursements.
The courts have long recognized the "basic natural rights of visitation and access to [one's] children" ( Matter of Denberg v Denberg, 34 Misc.2d 980, 986, quoted with approval in Strahl v Strahl, 66 A.D.2d 571, 579, affd 49 N.Y.2d 1036). The rule has, therefore, become firmly established that a custodial parent may not, by relocating to a distant locale, deprive the noncustodial parent of reasonable visitation ( Courten v. Courten, 92 A.D.2d 579, 580; Schwartz v. Schwartz, 91 A.D.2d 628, 629; Daghir v Daghir, 82 A.D.2d 191, affd 56 N.Y.2d 938). This rule, however, is not absolute and, in certain exceptional circumstances, "the need to relocate occasioned by the marriage of the custodial parent will not necessitate a change in the custody arrangement" ( Cataldi v. Shaw, 101 A.D.2d 823; see also, Martinez v Konczewski, 85 A.D.2d 717, affd 57 N.Y.2d 809). Such exceptional circumstances exist, for example, where a change in custody would adversely affect the emotional well-being of the child ( e.g., Cataldi v. Shaw, supra). Indeed, it is the best interest of the children which is the overriding concern ( see, Daghir v. Daghir, supra; Friederwitzer v. Friederwitzer, 55 N.Y.2d 89; Weiss v Weiss, 52 N.Y.2d 170). The decision as to whether the best interests of the children justify depriving the noncustodial parent of reasonable visitation is committed to the sound discretion of the trial court, whose determination must be afforded the greatest weight ( Cataldi v. Shaw, supra).
In this case, the trial court properly considered the welfare of the children to be of paramount importance and its findings that (1) a change in custody would not adversely affect the children's emotional well-being, and (2) both parents are equally fit, are supported by the record. We would note, moreover, that the mother, in announcing her intent to move to Texas, had ignored the terms of the parties' separation agreement, which provided that she obtain court permission in the event she desired to take up residence with the children anywhere outside of the Counties of Nassau, Suffolk, Westchester or New York City. Since the trial court did not abuse its discretion in ordering that custody be transferred to the father, we affirm. Gibbons, J.P., Bracken, O'Connor and Brown, JJ., concur.