The mother argues that Family Court should have granted her permission to move to Florida with the child. An initial custody determination is controlled by the best interests of the child, taking into consideration, among other things, the parents’ past performance and relative fitness, their willingness to foster a positive relationship between the child and the other parent, as well as their ability to maintain a stable home environment and provide for the child’s overall well-being.
Where, as here, a parent seeks to relocate with the child and an initial custody determination has yet to be rendered, the factors set forth in Matter of Tropea v. Tropea, 87 N.Y.2d 727, 740–741, 642 N.Y.S.2d 575, 665 N.E.2d 145 (1996) need not be strictly applied. However, the parent’s ‘decision to reside in a distant locale is a very important factor among the constellation of factors to be considered in arriving at a best interests determination, particularly where there is evidence that it would detrimentally affect the other parent’s relationship with the child.
The evidence at the fact-finding hearing, which solely consisted of testimony from the parties, demonstrated that both the mother and the father are loving and involved parents. The evidence established that the parties and the child lived together as a family for most of the child’s life, with the mother working outside of the home as the primary earner and the father caring for the child at home during her early childhood years and before and after school once the child reached school age.
The mother testified that, now that she and the father had separated, she desired to move with the child to Florida, where she has a greater earning potential and where most of the child’s extended maternal family lives. However, the evidence also established that the child has lived her entire life in New York, where she is flourishing academically and socially, and that she has and enjoys close relationships with extended paternal family members, including three adult paternal half siblings who live in or near New York.
With respect to her earning potential, the mother, who was employed as an assistant manager at Walgreens, testified that she could apply for and, if accepted, participate in a “Leap program” within Walgreens, which would ultimately enable her to manage her own Walgreens store in Florida. According to the mother, if she were to become a manager, she would earn more money, which would then allow her to work fewer hours, spend more time with the child and save for the child’s future. However, at the time of the fact-finding hearing, the mother had not applied for or been accepted into the Leap program in Florida and she acknowledged that the same program and opportunity existed in New York.
The mother proposed that, were she and the child to move to Florida, the child could stay with the father in New York every summer and over holidays and school breaks and she offered to cover the costs associated with the child’s travel to and from New York. Although the mother’s proposal exhibited a willingness to foster the child’s relationship with the father, the evidence demonstrated the close bond that the father enjoys with the child, having been heavily involved in the child’s day-to-day life for many years. In short, upon review of the evidence and consideration of the various competing factors, we find that a sound and substantial basis exists in the record to support Family Court’s determination that it was not in the child’s best interests to move to Florida with the mother.
Shane FF. v. Alicia GG., – NYS3d – , 2021 WL 5497301 (3rd Dep’t. 2021)
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