Is Relocation Good For The Children?

On Behalf of The Law Offices of Joseph H. Nivin, P.C. 

2013-06224 DECISION & ORDER

In the Matter of Lisa Christy, appellant, v BrianChristy, respondent.(Docket Nos. V-14614-12, V-14615-12, V-14616-12)Bryan L. Salamone & Associates, P.C., Melville, N.Y. (Katherine M. Saciolo ofcounsel), for appellant.Golden Hirschhorn LLP, Garden City, N.Y. (Alan K. Hirschhorn of counsel), forrespondent.Beth A. Rosenthal, North Babylon, N.Y., attorney for the child.In related custody proceedings pursuant to Family Court Act article 6, the motherappeals from an order of the Family Court, Suffolk County (Orlando, Ct. Atty. Ref.), dated May 10,2013, which granted the father’s motion, made at the close of the mother’s case, to dismiss herpetition to modify the custody provisions set forth in a stipulation of settlement dated November 17,2011, which was incorporated but not merged into the parties’ judgment of divorce entered June 11,2012, to allow her to relocate from New York to Arizona with the subject children, and, in effect,dismissed the proceeding.ORDERED that the order is affirmed, with costs.On a motion to dismiss a petition, made at the close of the petitioner’s case, the factsmust be viewed in the light most favorable to the petitioner, accepting his or her proof as true andaffording him or her every favorable inference that reasonably can be drawn therefrom (see MatterJanuary 29, 2014 Page 1.MATTER OF CHRISTY v CHRISTYof Mineo v Mineo,96 AD3d 1617;Matter of Stone v Wyant,8 AD3d 1046).Here, even when viewed in the light most favorable to the mother, the evidence shepresented on her case failed to establish, prima facie, that her proposal to relocate to Arizona withthe subject children was in their best interest (see Matter of Tropea v Tropea,87 NY2d 727, 739).The mother failed to provide sufficient proof that the move would enhance the children’s liveseconomically. The mother is currently living in the home of her second husband together with sixchildren, three from each of their prior marriages. The mother, an unemployed educator, testifiedthat she had received a job offer in Arizona, contingent on her obtaining reciprocal certification.She, however, did not testify about what salary she expected to earn. Further, the mother’s secondhusband, who has a secure job in New York earning between $60,000 and $80,000, annually, doesnot have a job waiting for him in Arizona (see Matter of McBryde v Bodden,91 AD3d 781, 782).Without proof of the second husband’s potential job prospects in Arizona, or proof of the mother’searning potential as a teacher in Arizona, any contention that the children would enjoy a higherquality of life there is speculative.enhanced emotionally by the move. There was no testimony regarding how the children felt aboutthe proposed move, in terms of how they believed it would affect their relationship with their fatheror any of their friends. In fact, there was no evidence as to whether the subject children even desiredto move (see Matter of Harrsch v Jesser,74 AD3d 811, 812).If relocation of the subject children across the country were permitted, the frequencyof contacts between them and the father, who, inter alia, currently visits with them three weekendsa month, would be significantly reduced (see Matter of McBryde v Bodden,91 AD3d at 782;Rubiov Rubio,71 AD3d 862, 863;Matter of Martino v Ramos,64 AD3d 657, 658;cf. Matter of Sahagunv Alix,107 AD3d 722, 723).The mother failed to show that the relationship between the subjecthildren and the father could be preserved through suitable visitation arrangements, particularlygiven her financial circumstances.Accordingly, the Family Court properly granted the father’s motion to dismiss themother’s petition at the close of her case (see Matter of Rotering v Rotering,6 AD3d 718).BALKIN, J.P., CHAMBERS, AUSTIN and ROMAN, JJ., concur.ENTER:Aprilanne AgostinoClerk of the CourtJanuary 29, 2014 Page 2.MATTER OF CHRISTY v CHRISTY

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