Saperston v. Holdaway

93 A.D.3d 1271, 940 N.Y.S.2d 728
CourtAppellate Division of the Supreme Court of the State of New York
DecidedMarch 23, 2012
StatusPublished
Cited by24 cases

This text of 93 A.D.3d 1271 (Saperston v. Holdaway) 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
Saperston v. Holdaway, 93 A.D.3d 1271, 940 N.Y.S.2d 728 (N.Y. Ct. App. 2012).

Opinions

Appeal from an order of the Family Court, Erie County (Sharon M. LoVallo, A.J.), entered July 1, 2011 in a proceeding pursuant to Family Court Act article 6. The order, inter alia, granted the parties joint custody of their child and designated petitioner-respondent the primary residential parent.

It is hereby ordered that the order so appealed from is modified on the law and the facts by awarding primary physical custody of the child to respondent-petitioner and as modified the order is affirmed without costs and the matter is remitted to Family Court, Erie County, for further proceedings in accordance with the following memorandum: Respondent-petitioner mother appeals from an order that, inter alia, awarded the parties joint custody of their child and granted petitioner-respondent father primary physical custody of the child. We agree with the mother that Family Court’s determination with respect to primary physical custody lacks a sound and substantial basis in the record (see generally Sitts v Sitts, 74 AD3d 1722, 1723 [2010], Iv dismissed 15 NY3d 833 [2010], Iv denied 18 NY3d 801 [2011]; Fox v Fox, 177 AD2d 209, 211-212 [1992]). We therefore modify the order by awarding primary physical custody to the mother and remitting the matter to Family Court to fashion an appropriate visitation schedule.

[1272]*1272We note at the outset that, inasmuch as this case involves an initial custody determination, it cannot properly be characterized as a relocation case to which the application of the factors set forth in Matter of Tropea v Tropea (87 NY2d 727, 740-741 [1996]) need be strictly applied (see Matter of Moore v Kazacos, 89 AD3d 1546, 1546 [2011], lv denied 18 NY3d 806 [2012]; Matter of Baker v Spurgeon, 85 AD3d 1494, 1496 [2011], lv dismissed 17 NY3d 897 [2011]; Matter of Schneider v Lascher, 72 AD3d 1417, 1417 [2010], lv denied 15 NY3d 708 [2010]). Although a court may consider the effect of a parent’s relocation as part of a best interests analysis, relocation is but one factor among many in its custody determination (see Verity v Verity, 107 AD2d 1082, 1084 [1985], affd 65 NY2d 1002 [1985]; Matter of Torkildsen v Torkildsen, 72 AD3d 1405, 1406 [2010]; Malcolm v Jurow-Malcolm, 63 AD3d 1254, 1255-1256 [2009]). Stated differently, “[i]n cases involving the geographic relocation of the custodial parent, as in all other custody proceedings, the. primary focus of the court is the best interests of the child, not the mere fact of relocation” (Matter of Donald C.O. v Carolyn D. v B., 224 AD2d 930, 930 [1996]). Here, the mother’s relocation to Brooklyn was seemingly the predominant factor upon which the court based its custody determination. Indeed, despite acknowledging that this case is not a “ ‘relocation case[ ],’ ” the court nonetheless proceeded to apply the Tropea factors, and concluded that the mother failed to prove that her relocation was in the child’s best interests. We conclude that the court erred. Inasmuch as this case involves an initial custody determination, the court improperly required the mother to establish by a preponderance of the evidence that her move to Brooklyn was in the best interests of the child (see Tropea, 87 NY2d at 741). Rather, the relevant issue is whether it is in the best interests of the child to reside primarily with the mother or the father (see generally Eschbach v Eschbach, 56 NY2d 167, 172-174 [1982]). We note in any event that the mother’s “relocation is not a proper basis upon which to award primary physical custody to [the father] . . . inasmuch as the child[ ] will need to travel between the parties’ two residences regardless of which parent is awarded primary physical custody” (Sitts, 74 AD3d at 1723).

In addition to placing undue emphasis on the mother’s relocation, we conclude that the court’s best interests determination is flawed and lacks a sound and substantial basis in the record (see generally Matter of Moran v Cortez, 85 AD3d 795, 796-797 [2011]; Matter of Michael P. v Judi P., 49 AD3d 1158, 1159 [2008]). The court indicated that it considered the following factors in rendering its determination: (1) the continuity and stabil[1273]*1273ity of the existing custodial arrangement, including the relative fitness of the parents and the length of time the custodial arrangement has continued; (2) the quality of each parent’s home environment; (3) the ability of each parent to provide for the child’s emotional and intellectual development; and (4) the financial status and ability of each parent to provide for the child (see Fox, 177 AD2d at 210).

With respect to the first factor, it is undisputed that, prior to the commencement of this proceeding, when the child was approximately 14 months old, the mother was the child’s primary caregiver. The father testified that, from the child’s birth until the commencement of this proceeding, the mother was the primary caretaker of the child, took the child to doctor appointments, and provided health insurance for the child. There are no indications in the record that the mother is unfit to care for the child and, indeed, the court specifically found that there were no issues with respect to the mother’s ability to care for the child. Significantly, the father testified that the mother “taught [him] . . . almost everything [he] know[s] about how to care for [the child].” We thus conclude that the first factor is in the mother’s favor.

As for the second factor, i.e., the quality of each parent’s home environment, the record reflects that both parents’ homes are satisfactory to raise a child, and thus this factor does not favor either party. The father resides in a four-bedroom farmhouse with his parents in a rural community in Western New York, while the mother lives in an apartment with 2V2 bedrooms in the Park Slope neighborhood of Brooklyn. With respect to the third factor, we conclude that the mother demonstrated the greater ability to provide for the child’s intellectual and emotional development. The mother is 35 years old, holds a master’s degree in mental health counseling, and is a New York State licensed mental health counselor. The father is 26 years old with a bachelor’s degree in the entertainment business. The father admitted that, when the child was a few months old, he became so frustrated with the child’s crying that he “felt like throwing [the child] against the wall.” In addition, the father testified that, when the child was born, he did not know how to care for an infant, nor did he take a parenting course until after he filed the custody petition, when the child was 14 months old. Prior to commencing this proceeding, the father lived in an apartment that, by his own admission, was inadequate for a child. The father did not make his apartment “baby ready” or seek alternate housing until the child was 14 months old. The father also testified that he voluntarily ceased all contact with [1274]*1274the child during the four months preceding the commencement of this proceeding as a result of an argument he had with the mother.

With respect to the fourth factor, i.e., the financial status and ability of each parent to provide for the child, the court concluded that such factor weighs in favor of the father. We disagree, and conclude that the court’s determination in that regard is unsupported by the record. The evidence establishes that the mother is employed by the University of Pittsburgh Medical Center and earns a salary of approximately $69,000.

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Bluebook (online)
93 A.D.3d 1271, 940 N.Y.S.2d 728, Counsel Stack Legal Research, https://law.counselstack.com/opinion/saperston-v-holdaway-nyappdiv-2012.