Opinion
2013-06-5
In the Matter of Gil SAHAGUN, Jr., appellant, v. Catherine ALIX, respondent.
Wisselman, Harounian & Associates, P.C., Great Neck, N.Y. (Eyal Talassazan of counsel), for appellant. Elizabeth A. Vreeburg, Kew Gardens, N.Y., for respondent.
Wisselman, Harounian & Associates, P.C., Great Neck, N.Y. (Eyal Talassazan of counsel), for appellant. Elizabeth A. Vreeburg, Kew Gardens, N.Y., for respondent.
Catherine A. Sheridan, P.C., Carle Place, N.Y., attorney for the child.
, J.P., DANIEL D. ANGIOLILLO, THOMAS A. DICKERSON, and CHERYL E. CHAMBERS, JJ.
In related custody and visitation proceedings pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Queens County (McGrady, Ct. Atty. Ref.), dated February 21, 2012, which, after a hearing, granted that branch of the mother's petition which was for leave to relocate with the party's child to New Jersey.
ORDERED that the order is affirmed, without costs or disbursements.
Contrary to the contention of the father, the mother established by a preponderance of the evidence that relocation to New Jersey was in the best interests of the parties' child ( see Matter of Tropea v. Tropea, 87 N.Y.2d 727, 740–741, 642 N.Y.S.2d 575, 665 N.E.2d 145). “ ‘When reviewing a custodial parent's request to relocate, the court's primary focus must be on the best interests of the child’ ” ( Matter of Garcia v. Becerra, 68 A.D.3d 864, 865, 890 N.Y.S.2d 625, quoting Matter of Giraldo v. Gomez, 49 A.D.3d 645, 852 N.Y.S.2d 842;see Matter of Tropea v. Tropea, 87 N.Y.2d at 739, 642 N.Y.S.2d 575, 665 N.E.2d 145;Matter of Said v. Said, 61 A.D.3d 879, 881, 878 N.Y.S.2d 384). To the extent that a “custody determination is largely dependent upon an assessment of the credibility of the witnesses and upon the character, temperament and sincerity of the parents” ( Matter of Plaza v. Plaza, 305 A.D.2d 607, 607, 759 N.Y.S.2d 368;see Matter of Grossman v. Grossman, 5 A.D.3d 486, 486–487, 772 N.Y.S.2d 559), “its finding must be accorded great weight, and its grant of custody will not be disturbed unless it lacks a sound and substantial basis in the record” ( Matter of Venette v. Rhodes, 301 A.D.2d 608, 608, 754 N.Y.S.2d 36;see Matter of Garcia v. Becerra, 68 A.D.3d at 865, 890 N.Y.S.2d 625). However, “[i]n 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) and the hearing court's determination will not stand in the absence of a sound and substantial basis in the record ( see Matter of McBryde v. Bodden, 91 A.D.3d 781, 782, 936 N.Y.S.2d 292).
“[E]conomic necessity ... may present a particularly persuasive ground for permitting the proposed move” ( Matter of Tropea v. Tropea, 87 N.Y.2d at 739, 642 N.Y.S.2d 575, 665 N.E.2d 145;see Matter of Wirth v. Wirth, 56 A.D.3d 787, 787, 869 N.Y.S.2d 138;Miller v. Pipia, 297 A.D.2d 362, 366, 746 N.Y.S.2d 729;Matter of Malandro v. Lido, 229 A.D.2d 541, 542, 645 N.Y.S.2d 845). Here, the mother demonstrated that she was not able to meet her living expenses while residing in Queens, and the father conceded that he did not regularly pay his share of the childcare expenses. The mother also demonstrated that, if she were permitted to relocate, her mother would assist with the childcare and that she and the child would be able to reside, at a reduced rent, in her mother's home, located only blocks from where the child would attend school. While the father's loss of weekly weekday contact with the child is neither trivial nor insignificant ( see Matter of Wisloh–Silverman v. Dono, 39 A.D.3d 555, 557, 834 N.Y.S.2d 539), the relocation is not a great distance and the visitation schedule devised by the court in this case allows for the continuation of a meaningful relationship between the father and the child ( see Matter of Tropea v. Tropea, 87 N.Y.2d at 742, 642 N.Y.S.2d 575, 665 N.E.2d 145; Matter of Wisloh–Silverman v. Dono, 39 A.D.3d at 557, 834 N.Y.S.2d 539;Matter of Mooney v. Ferone, 34 A.D.3d 679, 825 N.Y.S.2d 495;Thomas v. Thomas, 271 A.D.2d 726, 727, 705 N.Y.S.2d 435). Further, the Family Court's determination was in accordance with both the child's stated preference and the position of the attorney for the child ( see Matter of Shaw v. Miller, 91 A.D.3d 879, 938 N.Y.S.2d 107;Matter of Fegadel v. Anderson, 40 A.D.3d 1091, 836 N.Y.S.2d 694). Since the Family Court's determination had a sound and substantial basis in the record, it should not be disturbed ( see Matter of Giraldo v. Gomez, 49 A.D.3d 645, 645, 852 N.Y.S.2d 842;Matter of Coulter v. Scales, 20 A.D.3d 475, 797 N.Y.S.2d 772).