Pecorello v. Snodgrass , 530 N.Y.S.2d 350 ( 1988 )

Order reversed on the law and facts without costs, and matter remitted to Oneida County Family Court for further proceedings, in accordance with the following memorandum: Petitioner Joseph M. Pecorello instituted the present petition to modify a prior order of custody and visitation to grant him either custody of the infant issue of the marriage or restructured visitation because of the respondent Deborah R. Pecorello Snodgrass’ relocation with the parties’ child from Utica, New York, to Winston-Salem, North Carolina. Following a hearing, the court granted custody to petitioner, finding that the relocation was not based on a compelling reason. We disagree.

Absent exceptional or compelling circumstances, a geographic relocation by a custodial parent which will effectively deny a noncustodial parent visitation will not be permitted (Weiss v Weiss, 52 NY2d 170; Richardson v Howard, 135 AD2d 1140). One such exceptional circumstance arises from the obligation which a divorced parent undertakes resulting from remarriage (Weiss v Weiss, supra, at 177; Weber v Weber, 84 AD2d 940; Cmaylo v Cmaylo, 76 AD2d 898, appeal dismissed 51 NY2d 770).

Here, the record establishes that respondent married Mr. Snodgrass in 1984 and that he was involuntarily transferred from his position in Utica to North Carolina in April 1986 because of his prior employer’s, Empire Airlines, merger with Piedmont Airlines. Mr. Snodgrass has been employed for six years with Empire since his graduation from college. His position in Utica was abolished in the merger and no comparable supervisory positions were available. Additionally, the record revealed that similar employment was not available in this geographic area because no airline maintained its headquarters in New York. Further, respondent has indicated a willingness to take all steps necessary to provide petitioner with continued access to the child by modifying the prior visitation provisions.

Given those circumstances, the custodial parent’s relocation with the child should be permitted (Shed v Sofia, 134 AD2d 894, affd 70 NY2d 997; Cataldi v Shaw, 101 AD2d 823; Martinez v Konczewski, 85 AD2d 717, affd 57 NY2d 809; Weber v Weber, supra; Cmaylo v Cmaylo, supra). We reverse the Family Court’s order granting petitioner custody of the infant issue of the marriage and remit the matter for consideration of petitioner’s alternative request for a restructured visitation schedule.

All concur, except Pine and Balio, JJ., who dissent and vote to affirm in the following memorandum.