Giraldo v. Gomez

49 A.D.3d 645, 852 N.Y.2d 842

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 11, 2008
• Status: Published

Opinion

When reviewing a custodial parent’s request to relocate, the court’s primary focus must be on the best interests of the child (see Matter of Tropea v Tropea, 87 NY2d 727, 739 [1996]; Kime v Kime, 302 AD2d 564 [2003]; Harmon v Harmon, 254 AD2d 456 [1998]). Furthermore, “ ‘[s]ince the Family Court’s . . . determination is largely dependent upon an assessment of the credibility of the witnesses and upon the character, temperament, and sincerity of the parents, its determination should not be disturbed unless it lacks a sound and substantial basis in the record’ ” (Matter of Grossman v Grossman, 5 AD3d 486, 486-487 [2004], quoting Matter of Plaza v Plaza, 305 AD2d 607, 607 [2003]).

The Family Court, upon weighing the appropriate factors set forth in Matter of Tropea v Tropea (87 NY2d 727 [1996]), properly determined that relocation was not in the child’s best interests. Also, contrary to the mother’s contention, the Family Court considered her allegations of domestic violence in making its determination (see Domestic Relations Law § 240 [1]).

Under the circumstances of this case, the Family Court erred in directing the parties to engage in mediation.

The mother’s remaining contentions are without merit. Rivera, J.P., Miller, Dillon and Helen, JJ., concur.