Lynch v. Gillogly

82 A.D.3d 1529, 920 N.Y.2d 437
CourtAppellate Division of the Supreme Court of the State of New York
DecidedMarch 31, 2011
StatusPublished
Cited by30 cases

This text of 82 A.D.3d 1529 (Lynch v. Gillogly) 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
Lynch v. Gillogly, 82 A.D.3d 1529, 920 N.Y.2d 437 (N.Y. Ct. App. 2011).

Opinion

Spain, J.E

The parties, the unwed parents of a daughter (born in 2006), became involved in a romantic relationship while respondent (hereinafter the father), a resident of Tompkins County, was living out of town and working on a construction project in the Village of Dolgeville, Herkimer County. At that time, the father was also involved in a live-in relationship with a woman in the Village of Freeville, Tompkins County; petitioner (hereinafter the mother) was aware of that relationship. In early 2002, when the construction project was almost completed, the father — in order to continue to pursue his relationship with the mother— persuaded her to move with her two older daughters (born in 1994 and 1998) to Freeville, promising to provide them with a home and financial assistance. He bought her a house and supported her and her children both emotionally and financially, regularly staying at their home while continuing to also reside with his live-in companion who he led to believe that he was out of town on business during his absences. Between 2002 and 2006, the father was supporting both the home of the mother, with whom he continued his romantic relationship, and that of his live-in companion, who he married after she became pregnant with their son (born in 2005). The mother became pregnant with the subject child in 2006 and, soon after her birth, the mother and father’s relationship became strained. In 2009, the mother commenced the instant proceeding seeking joint custody and physical placement of the child with her and permission to return to Dolgeville with the child, 21/2 hours away. The father thereafter cross-petitioned for sole custody and the mother subsequently amended her petition, requesting [1530]*1530sole custody. Following a fact-finding hearing, Family Court granted the mother sole custody and approved her relocation; the father was granted specific liberal parenting time, including alternate weekends, three-day weekends when the child is not in school and alternating full weeks during the summer. The father now appeals.

Family Court properly granted sole custody to the mother and permitted her requested relocation. In making an initial custody determination, the overriding priority is the best interests of the child (see Matter of Schneider v Lascher, 72 AD3d 1417, 1418 [2010], lv denied 15 NY3d 708 [2010]; Matter of Richardson v Alling, 69 AD3d 1062, 1063 [2010]). In undertaking this best interests analysis, “Family Court was required to consider various factors, including how the decision would impact on the child[ ]’s stability, the home environment of both parents, each parent’s willingness to foster a relationship with the other parent, and their past performance and ability to provide for the [child’s] overall well-being” (Matter of White v White, 77 AD3d 1073, 1074 [2010] [internal quotation marks and citations omitted]; see Matter of Clupper v Clupper, 56 AD3d 1064, 1065-1066 [2008]). In addition to this nonexhaustive list, all other relevant factors must be considered (see Matter of Troy SS. v Judy UU., 69 AD3d 1128, 1131 [2010], lv denied 14 NY3d 912 [2010]; Matter of Solomon v Long, 68 AD3d 1467, 1468 [2009]), including a parent’s decision to relocate (see Malcolm v Jurow-Malcolm, 63 AD3d 1254, 1255-1256 [2009]) and the effect an award of custody would have on the child’s relationship with the noncustodial parent (see Matter of Lukaszewicz v Lukaszewicz, 256 AD2d 1031, 1033 [1998]). As this is an initial custody determination, it is not necessary to adhere to a strict application of the relevant factors to be considered in a potential relocation as enunciated in Matter of Tropea v Tropea (87 NY2d 727 [1996]; see Ostrander v McCain, 68 AD3d 1480, 1481 [2009]; Furman v Furman, 298 AD2d 627, 628-629 [2002], lv dismissed and denied 99 NY2d 575 [2003]), and Family Court’s determination should be accorded deference unless it lacks a sound and substantial basis in the record (see Matter of Burdick v Babcock, 59 AD3d 826, 827 [2009]; Matter of De Losh v De Losh, 235 AD2d 851, 853 [1997], lv denied 89 NY2d 813 [1997]).

Here, the mother has always been the subject child’s primary caregiver, and the child has always lived with her mother and older sisters, with the father coming and going between his two households. However, the record indicates that the mother has a history of alcohol abuse and alcohol-related driving convictions, the second of which was a conviction for driving while [1531]*1531intoxicated that occurred after the child was born.

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Bluebook (online)
82 A.D.3d 1529, 920 N.Y.2d 437, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lynch-v-gillogly-nyappdiv-2011.