McLaughlin v. Michaud

256 A.D.2d 1130, 682 N.Y.S.2d 498, 1998 N.Y. App. Div. LEXIS 14236

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 31, 1998
• Status: Published

Opinion

—Order unanimously modified on the law and as modified affirmed without costs and matter remitted to Erie County Family Court for further proceedings in accordance with the following Memorandum: Petitioner appeals from an order awarding custody of the parties’ child to respondent and permitting respondent to relocate with the child to Massachusetts. Conflicting evidence was presented concerning the parenting abilities of the parties, and Family Court relied upon the testimony of a custody evaluator and a court-appointed psychologist in determining that the best interests of the child would be served by awarding custody to respondent. That determination should be accorded the greatest respect (see, Eschbach v Eschbach, 56 NY2d 167, 173), and we perceive no basis in this record to disturb it.

In permitting respondent to relocate with the child to Massachusetts, however, the court made no explicit determination that the relocation was in the best interests of the child, and it failed to make findings regarding relevant factors that must be considered in making such a determination (see, Matter of Tropea v Tropea, 87 NY2d 727, 740-741). We note in particular that the experts on whom the court relied in awarding custody to respondent also testified that their recommendations concerning primary custody were based on their additional recommendations that respondent and the child remain in the Buffalo area.

Thus, we modify the order in accordance with this Memorandum, and we remit the matter to Erie County Family Court for its determination, including specific findings, whether relocation is in the best interests of the child. (Appeal from Order of Erie County Family Court, Szczur, J. — Custody.) Present— Green, J. P., Wisner, Hayes, Balio and Fallon, JJ.