Opinion
July 14, 1992
Appeal from the Supreme Court, Cattaraugus County, Sprague, J.
Present — Callahan, J.P., Pine, Boehm, Fallon and Davis, JJ. (Entered June 29, 1992.)
Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Defendant mother appeals from an order of Supreme Court that directed physical custody of the parties' two children to be transferred to plaintiff father in Cattaraugus County. She contends that Supreme Court's order is inconsistent with the best interests of the children.
Defendant Tina Sanders and plaintiff Matthew Sanders were married in May 1986, separated in December 1988, and divorced on September 5, 1989. Tyler Sanders was born December 17, 1984 and Jena Sanders was born May 14, 1988. Incorporated in the parties' divorce decree was a stipulation for joint custody with primary physical custody with defendant and alternate weekend visitation with plaintiff. Under the agreement, plaintiff was obligated to pay child support to defendant in the amount of $50 per week, per child. The custody agreement did not address the possibility of either party's relocation.
Without notice to plaintiff, the defendant took the children and moved to Florida in February 1990 to be with Vance Woodard, her fiance, a longtime Florida resident employed in his family's garage door installation company. Plaintiff has since married a woman with two young sons; she has indicated that she would welcome plaintiff's two children in their home in Cattaraugus County.
Plaintiff brought this action seeking defendant's return with the children or, in the alternative, a change of primary physical custody. A hearing was held at which Supreme Court properly considered the best interests of the children and ordered that, if defendant remains in Florida, physical custody will be granted to plaintiff as of July 1, 1992.
"In child custody cases, the paramount concern is the best interests of the child (Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 94; Matter of Nehra v. Uhlar, 43 N.Y.2d 242, 250). Whenever possible, the best interests of a child lie in being nurtured by both of his natural parents (see, Weiss v. Weiss, 52 N.Y.2d 170, 175; Daghir v. Daghir, 82 A.D.2d 191, 193, affd 56 N.Y.2d 938; Hemphill v. Hemphill, 169 A.D.2d 29[, 32, appeal dismissed 78 N.Y.2d 1070]). Thus, visitation is a joint right of the divorced, noncustodial parent and his child (Weiss v. Weiss, supra, at 175; Stec v. Levindofske, 153 A.D.2d 310, 312, lv denied 75 N.Y.2d 711; Matter of Bonfiglio v. Bonfiglio, 134 A.D.2d 426). Implicit in the visitation provisions of a divorce decree is the prohibition against a custodial parent removing the child to a distant place, a move which necessarily frustrates visitation rights (Priebe v. Priebe, 81 A.D.2d 746, 747, affd 55 N.Y.2d 997; Barie v. Faulkner, 115 A.D.2d 1003). `"While the remarriage of a divorced parent cannot work to deny that parent custodial rights to his or her child, nonetheless, the custodial parent bears a heavy burden of proving exceptional circumstances or pressing concerns for the welfare of the custodial parent or the child which would warrant a relocation"' [citations omitted]" (Wiles v. Wiles, 171 A.D.2d 398, 399-400; see also, Curcio v Curcio, 177 A.D.2d 1051; cf., Matter of Pecorello v. Snodgrass, 142 A.D.2d 920, appeal dismissed 72 N.Y.2d 1039; Martinez v Konczewski, 85 A.D.2d 717, affd 57 N.Y.2d 809).
We conclude that defendant's relocation to Florida was not justified by such exceptional circumstances that would excuse her effective termination of plaintiff's visitation rights under the parties' agreement (see, Stec v. Levindofske, supra). The trial court's conclusion that both parties love and care for the children and are equally fit to serve as the custodial parent is entitled to considerable deference (see, Matter of Towne v Towne, 154 A.D.2d 766). Further, the trial court recognized the father's bond with the children as sufficient to support immediate transfer of custody to him. Importantly, both plaintiff and defendant have relatives in Cattaraugus County, while neither has family ties in Florida (see, Lo Bianco v. Lo Bianco, 131 A.D.2d 642).
There is nothing regarding either child that necessitated relocation to Florida (see, Wiles v. Wiles, supra). Rather, defendant relocated seeking a fresh start where her fiance was employed. She offered no proof that he had sought employment in or near Cattaraugus County (see, Stec v. Levindofske, supra, at 312), nor did she demonstrate that his role in the garage door installation business was a "unique opportunity to take part in an ongoing family concern" (Zaleski v. Zaleski, 128 A.D.2d 865, 866, lv denied 70 N.Y.2d 603).
To ensure that the children will be returned to Cattaraugus County prior to the start of the 1992-1993 school year, we modify the order to the extent that we direct defendant to return the children to Cattaraugus County on or before August 17, 1992. If defendant fails to return with the children by that date, permanent physical custody of the children is transferred to plaintiff. In all other respects we affirm the order of Supreme Court.