Alaire K.G. v. Anthony P.G.

86 A.D.3d 216, 925 N.Y.2d 417
CourtAppellate Division of the Supreme Court of the State of New York
DecidedMay 31, 2011
StatusPublished
Cited by16 cases

This text of 86 A.D.3d 216 (Alaire K.G. v. Anthony P.G.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alaire K.G. v. Anthony P.G., 86 A.D.3d 216, 925 N.Y.2d 417 (N.Y. Ct. App. 2011).

Opinions

OPINION OF THE COURT

Moskowitz, J.

This appeal, involving a custodial parent’s request to relocate with the parties’ child, falls within the class of cases that “present some of the knottiest and most disturbing problems that our courts are called upon to resolve” (Matter of Tropea v Tropea, 87 NY2d 727, 736 [1996]).

The parties were married in January 2004, separated about a year and a half later and were divorced on July 13, 2006. They are the parents of a now six-year-old boy born on May 17, 2004. The stipulation settling the divorce case granted the mother legal and physical custody of the child. The father had visitation every week from Monday at 8:00 a.m. until Wednesday at 6:00 p.m. The stipulation allowed relocation within 25 miles of the father’s house in the Bronx.

The father has had a history of irregular employment and is currently not employed. At the time of trial, the mother, who is remarried, cared for her younger child from her second marriage, full time.

After the parties separated, the mother remained in the marital apartment in the Bronx with the child for two years. In the fall of 2007, she began working as a project administrator in the construction field. In 2007, she moved with the child and her boyfriend to Connecticut. The mother testified that she always wanted her son to be in a suburban environment. She stated [218]*218that she was trying “to mirror my own childhood. I had a wonderful suburban upbringing.” The relationship in Connecticut ended when the boyfriend returned to his native New Zeal- and. The mother returned to New York with the child and moved into an apartment in Harlem.

In January 2008, the mother met her future husband, Hugh Bonnar, on Match.com. Bonnar was retired from the Air Force, lived in North Carolina and was then involved in a nationwide job search. Ultimately, Bonnar took a job with Northrop Grumman in San Diego. He had requested to work at Northrop Grumman’s Long Island branch, but the company could not accommodate his request. The mother and Bonnar became engaged in May 2008.

Soon after her engagement, the mother approached the father about moving to California to live with Bonnar. The father was concerned about the distance and the stability of the mother’s new relationship. The parties therefore met with a mediator to try to work out an arrangement by which the mother could leave the child with the father temporarily while she settled in California. The mediator sent a letter, dated May 12, 2008, that purported to memorialize the parties’ agreement. The letter stated that the parties agreed that the child would stay with the father from June 27, 2008 until December 31, 2008, with the mother making several long weekend visits to New York. Mother and son were also to participate in a webcam phone call two to three times a week. The letter did not address where the child would live after December 31, 2008. However, the father refused to sign an agreement embodying these terms and instead asked the mother to sign over custody to him. She refused. The mother left for California on June 26, 2008. She claims that she never intended the father to have permanent custody, but arrangements to move to California had become irreversible by the time she learned that the father did not agree.

The mother gave birth to Bonnar’s son on April 4, 2009. She and Bonnar were also married in April 2009.

On July 17, 2008, the father filed a petition seeking sole legal and physical custody of the parties’ child, claiming that the mother had abandoned the child. On December 1, 2008, the mother filed a petition for relocation. The court consolidated the two petitions. Before the hearing, the father withdrew his petition for sole custody. Accordingly, the court considered only the relocation application.

It was not until August 2009 that a two-day hearing finally took place. The parties were the only witnesses. The court did [219]*219not issue a decision until almost a year later, on July 19, 2010, granting the mother’s relocation petition. During the time the parties were waiting for the court’s decision, the child continued to live with the father. After the court’s decision was issued, the child moved to California in compliance with the court’s order.

“[E]ach relocation request must be considered on its own merits with due consideration of all the relevant facts and circumstances and with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child” (Matter of Tropea v Tropea, 87 NY2d 727, 739 [1996]). Among the factors the court must consider are: (1) “each parent’s reasons for seeking or opposing the move,” (2) the quality of the child’s relationship with each parent, (3) the impact of the move on the child’s future contact with the noncustodial parent, (4) the degree to which the move may enhance the custodial parent’s and child’s life economically, emotionally and educationally, and (5) “the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements” (id. at 740-741). The dissent states that Tropea dictates that the court’s “central concern” should be the impact of the move on the relationship between the child and the noncustodial parent. This interpretation misreads the case. Tropea states that “[o]f course, the impact of the move on the relationship between the child and the noncustodial parent will remain a central concern” (id. at 739). However, it is not “the” central concern. Rather, the case makes abundantly clear that, “it is the rights and needs of the children that must be accorded the greatest weight” (id.). Indeed, the Court of Appeals rejected the “three-tiered” analysis that required a court to determine first “whether the proposed relocation would deprive the noncustodial parent of ‘regular and meaningful access to the child’ ” (id. at 736).

Family Court recognized the Tropea factors and analyzed this case accordingly:

“While it is true that Mother was young when Aodhan was born, there is no question now that she is in a stable relationship, remarried and that her financial situation dictates that her family live where her husband can make a living. The benefits to the child were demonstrated^] by testimony and documentary evidence, as a suburban middle class lifestyle, public school with every possible amenity available at no cost, comprehensive health insur[220]*220anee, a stay at home mother, easily available excellent physicians, a positive post-divorce family unit and most importantly, the benefits of the child growing up with his younger brother on a daily basis.
“The Court recognizes and agonized at great length over the impact of the relocation on the child’s ability to maintain a consistent, ongoing and meaningful relationship with his Father. The visitation schedule set forth hereinafter is designed to mitigate such impact, given the distance between New York and California.”

There is no reason to disturb the findings of the court, that had the opportunity to héar the parents testify and had an in camera meeting with the child (see Matter of James Joseph M. v Rosana R., 32 AD3d 725, 726 [2006], Iv denied

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Cite This Page — Counsel Stack

Bluebook (online)
86 A.D.3d 216, 925 N.Y.2d 417, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alaire-kg-v-anthony-pg-nyappdiv-2011.