Matter of Julie E. v. David E. , 1 N.Y.S.3d 431 ( 2015 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: January 8, 2015 515664
______________________________________
In the Matter of JULIE E.,
Appellant,
v
MEMORANDUM AND ORDER
DAVID E.,
Respondent.
(And Three Other Related Proceedings.)
______________________________________
Calendar Date: November 19, 2014
Before: Lahtinen, J.P., Garry, Rose and Devine, JJ.
__________
Douglas Walter Drazen, Binghamton, for appellant.
Norbert Higgins, Binghamton, for respondent.
Alena E. Van Tull, Binghamton, attorney for the children.
__________
Garry, J.
Appeal from an order of the Family Court of Broome County
(Charnetsky, J.), entered October 10, 2012, which, among other
things, dismissed petitioner's application, in four proceedings
pursuant to Family Ct Act articles 5, 6 and 8, for permission to
relocate with the parties' children.
Petitioner (hereinafter the mother) has a daughter and a
son (born respectively in 2007 and 2004). Respondent
(hereinafter the father) is the daughter's biological father, and
he shares joint custody of both children with the mother pursuant
to a 2010 order; the children's primary residence is with the
mother. In December 2011, the mother commenced the first of
-2- 515664
these proceedings by filing a family offense petition. The
father then filed a petition for modification of custody and a
petition for modification of visitation, and the mother cross-
petitioned for leave to relocate with the children to Texas.
Following a fact-finding hearing and an interview with the
children, Family Court dismissed the relocation and modification
petitions, and the remaining petitions were dismissed without
prejudice. The mother appeals arguing that the court erred in
dismissing her relocation petition.
As the mother contends, Family Court applied the incorrect
standard in dismissing the relocation petition on the ground that
the mother had failed to show a sufficient change in
circumstances to warrant modification. No change in
circumstances must be established to support a relocation
petition, as the planned move itself is accepted as such (see
Matter of Adams v Bracci, 91 AD3d 1046, 1046-1047 [2012], lv
denied 18 NY3d 809 [2012]; see also Lauzonis v Lauzonis, 120 AD3d
922, 923 [2014]). Instead, the parent who wishes to relocate
bears the burden of establishing that the proposed move is in the
best interests of the children, a determination based upon such
factors as the parents' reasons for seeking or opposing
relocation, the quality of the children's relationships with each
parent, the feasibility of developing a visitation schedule that
will permit the children to retain meaningful relationships with
the parent who does not move, the degree to which the move may
offer economic, emotional and educational benefits for the
relocating parent and the children, and the effect of the
relocation on extended family relationships (see Matter of Tropea
v Tropea, 87 NY2d 727, 740 [1996]; Matter of Norback v Norback,
114 AD3d 1036, 1036-1037 [2014]; Matter of Cole v Reynolds, 110
AD3d 1273, 1273-1274 [2013]). Although that analysis was not
conducted here, this Court's authority is as broad as that of
Family Court, and the record is sufficiently complete to permit
us to make the relocation determination based upon our
independent review (see Ostrander v McCain, 68 AD3d 1480, 1483
[2009]; Matter of Valenti v Valenti, 57 AD3d 1131, 1132 [2008],
lv denied 12 NY3d 703 [2009]).
The mother testified that she wished to relocate to benefit
from the economic and emotional support of her father
-3- 515664
(hereinafter the grandfather) and other family members who reside
in Texas. She stated that she worked part time in New York as a
personal care aide with variable wages but, in Texas, she would
be able to work full time in a family storage business, earning a
salary of approximately $28,000, which would permit her to
discontinue receiving public assistance and residing in public
housing, as she does in New York, and to forgo the father's child
support obligation. In her later testimony the mother qualified
this claim, stating that her wages might be only $10 per hour,
that she was not sure what her salary would be, and that "[w]e
really haven't talked about that." The grandfather and the
mother's sister confirmed that a job was available for the mother
in the family business, as well as a home that the mother and
children would share with the mother's sister. The grandfather
further testified that he would be able to assist the mother, who
has a GED, in obtaining a college education if she moved, but
failed to explain why any such assistance would not be available
if she remained in New York. As for the children's education,
the mother identified the schools that they would attend in Texas
and stated that she was pleased with them, but offered no
evidence comparing them to the children's New York schools or
indicating that better educational opportunities were available
in Texas.
The father opposed the mother's relocation request because
of the detrimental impact such a move would have on his contact
and relationship with the children. The father testified that,
pursuant to the current order, he spends Tuesday and Thursday
evenings with the children each week and has an overnight visit
every weekend. Although the mother testified that the father
often missed these visits or left the children with the paternal
grandmother, the father and grandmother disputed this claim,
testifying that he had missed only a few recent visits, partly as
the result of a serious illness, and that he was always present
when the children visited the grandmother during his visitation
periods. The mother testified that the father would be free to
visit the children in Texas following the move and could maintain
telephone and Skype contact with them, but that she would be
reluctant to permit the children to return to New York for visits
with him. The father, however, testified that financial
obstacles would make it difficult for him to travel to Texas.
-4- 515664
The testimony established that a move would permit the
children to establish better relationships with extended family
members in Texas, with whom their contact has primarily been
limited to telephone or Skype, but would simultaneously limit or
destroy their opportunities for contact with paternal relatives
with whom they presently enjoy well-established relationships.
In particular, the paternal grandmother has been closely involved
with the children throughout their lives. She testified that the
mother, father and children resided with her or near her before
the parents separated and that she presently resides next door to
the father and sees the children frequently. She further
testified that several other paternal relatives live nearby and
that she has maintained a positive relationship with the mother,
hosting informal visits with the mother and children at the
grandmother's home and sometimes providing babysitting assistance
when the mother travels.
Family Court found that both parents are fit custodians who
enjoy positive relationships with the children, although not with
one another; the mother testified that there had been previous
incidents of domestic violence. Considering all of the relevant
factors and based primarily on the significant harmful impact
that a move would have upon the children's well-established
relationships with the father and his family in New York, we
conclude that the mother did not meet her burden of demonstrating
that relocation to Texas would be in their best interests (see
Matter of Cowper v Vasquez, 121 AD3d 1341, 1343 [2014]; Matter of
Jones v Soriano, 117 AD3d 1350, 1351-1352 [2014], lv denied 24
NY3d 901 [2014]; Rose v Buck, 103 AD3d 957, 960-961 [2013];
Matter of Munson v Fanning, 84 AD3d 1483, 1485 [2011]).
As a final matter, we note that Family Court conducted what
was described as a "modified" Lincoln hearing, in which counsel
for both parents were permitted to be present during the court's
interview with the children. The transcript of the interview was
not sealed, and was included in full in the appellate record.
Neither the presence of counsel other than the attorney for the
children during the interview nor the failure to seal the
transcript was proper. We reiterate that the right to
confidentiality during a Lincoln hearing belongs to the child and
is superior to the rights or preferences of the parents (see
-5- 515664
Matter of Lincoln v Lincoln, 24 NY2d 270, 271-272 [1969]; Matter
of Lawrence v Kowatch, 119 AD3d 1004, 1006 n 1 [2014]; Matter of
Susan LL. v Victor LL., 88 AD3d 1116, 1119 n 4 [2011]; Matter of
Spencer v Spencer, 85 AD3d 1244, 1246 [2011]; Matter of Verry v
Verry, 63 AD3d 1228, 1229 [2009], lv denied 13 NY3d 707 [2009];
Matter of Hrusovsky v Benjamin, 274 AD2d 674, 676 [2000]; Matter
of Sellen v Wright, 229 AD2d 680, 681-682 [1996]; see also Family
Ct Act § 664 [b]). A child who is explaining the reasons for his
or her preference in custody or visitation proceedings "should
not be placed in the position of having [his or her] relationship
with either parent further jeopardized by having to publicly
relate [his or her] difficulties with them or be required to
openly choose between them" (Matter of Lincoln v Lincoln, 24 NY2d
at 272; accord Matter of Casarotti v Casarotti, 107 AD3d 1336,
1338-1339 [2013], lv denied 22 NY3d 852 [2013]; see Matter of
Sellen v Wright, 229 AD2d at 681-682). We address this issue
recognizing that, in the course of practice, confusion may have
resulted from the different procedure followed during Family Ct
Act article 10 proceedings, in which the presence of the parties'
counsel during an in camera interview with a child may be
permissible due to the fundamental right of litigants in such
proceedings to confront their accusers. Although these
interviews have sometimes been inaccurately referred to as
Lincoln hearings, they are conducted for entirely different
purposes than the confidential interviews conducted during
custody and visitation proceedings (see Matter of Justin CC.
[Tina CC.], 77 AD3d 207, 210-211 [2010]). For the court to
fulfill its primary responsibility of protecting the welfare and
interests of a child in the context of a Family Ct Act article 6
proceeding, protecting the child's right to confidentiality
remains a paramount obligation (see Matter of Lincoln v Lincoln,
24 NY2d at 271-272).
Lahtinen, J.P., Rose and Devine, JJ., concur.
-6- 515664
ORDERED that the order is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court