                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: February 19, 2015                   518737
_________________________________

In the Matter of SHAWN E.
   GATES,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

ERIC PETOSA,
                    Respondent.

(And Another Related Proceeding.)
_________________________________


Calendar Date:   January 9, 2015

Before:   McCarthy, J.P., Rose, Egan Jr. and Devine, JJ.

                             __________


      Arroyo Copland & Associates, Albany (Amy C. Kendall of
counsel), for appellant.

      Friedman & Molinsek, PC, Delmar (Nicole R. Redmond of
counsel), for respondent.

     Monica M. Kenny, Cairo, attorney for the children.

                             __________


Devine, J.

      Appeal from an order of the Family Court of Greene County
(Pulver Jr., J.), entered August 23, 2013, which, among other
things, dismissed petitioner's application, in a proceeding
pursuant to Family Ct Act article 6, for permission to relocate
with the parties' children.

      Petitioner (hereinafter the mother) and respondent
(hereinafter the father) are the divorced parents of two children
(born in 1999 and 2002). Pursuant to a stipulation that was
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incorporated into the parties' judgment of divorce, the parties
shared joint legal custody of the children, with primary physical
custody granted to the mother and a visitation schedule
established for the father. In addition, the stipulation
provided that the children would attend the Hunter-Tannersville
Central School District "until further order of the [c]ourt."
Approximately one year later, the mother commenced the instant
proceeding seeking to relocate the children from the Village of
Tannersville, Greene County to the City of Kingston, Ulster
County. Thereafter, the father filed a cross petition alleging a
violation of the custody agreement. After conducting a fact-
finding hearing and a Lincoln hearing, Family Court, among other
things, dismissed the mother's petition. The mother now appeals.

      Preliminarily, the mother contends that Family Court erred
in determining that she failed to demonstrate a sufficient change
in circumstances that could provide a basis to modify the custody
agreement and, further, that the proposed relocation did not
serve the children's best interests. As to the first point,
"[i]n contrast to an ordinary modification proceeding, where the
petitioning party must demonstrate a change in circumstances and
that a modification is in the child[ren's] best interests, a
relocation is accepted as a change in circumstances," thereby
requiring the petitioning parent to only demonstrate by a
preponderance of the evidence that the proposed relocation serves
the children's best interests (Matter of Adams v Bracci, 91 AD3d
1046, 1046-1047 [2012], lv denied 18 NY3d 809 [2012]; see Matter
of Tropea v Tropea, 87 NY2d 727, 738-739 [1996]; Matter of
Sniffen v Weygant, 81 AD3d 1054, 1055 [2011], appeals dismissed
16 NY3d 886 [2011], 17 NY3d 884 [2011]). A best interests
analysis requires the court to consider several factors,
including each parent's reasons for seeking or opposing the
relocation, the children's relationships with both parents, the
impact of the move on the noncustodial parent's contact with the
children, the degree to which the move will enhance the economic,
emotional and educational status of the children and the
custodial parent and, finally, the likelihood that the bond
between the noncustodial parent and the children can be
maintained by the implementation of a suitable visitation
arrangement (see Matter of Jones v Soriano, 117 AD3d 1350, 1351
[2014], lv denied 24 NY3d 901 [2014]; Rose v Buck, 103 AD3d 957,
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958 [2013]; Matter of Sniffen v Weygant, 81 AD3d at 1055).
Although Family Court mistakenly held that the mother was
obligated to demonstrate a sufficient change in circumstances
warranting a modification of the parties' custody arrangement,
inasmuch as the court properly considered the necessary factors
in deciding the mother's application and its determination that
the proposed relocation would not serve the children's best
interests is supported by sound and substantial evidence, we find
no reason to disturb its order (see Matter of Stetson v Feringa,
114 AD3d 1089, 1090 [2014]; Matter of Batchelder v BonHotel, 106
AD3d 1395, 1398 [2013]).

      At the fact-finding hearing, the mother testified that
relocating would allow her to, among other things, live rent-free
with her fiancé and work in a hospital in Kingston, while also
reducing travel time to her medical appointments in New York
City. She further averred that the children would be able to
spend more time with their maternal grandmother and aunt and
that, because they regularly visited Kingston, they had become
involved in community activities and received medical care from
providers in the area. The father explained that he opposed the
move primarily because it would contravene the parties' recently-
executed agreement that the children would remain enrolled in the
Hunter-Tannersville School District. He was concerned that
uprooting the children from the schools in which they had fared
well academically and socially would prove overly disruptive at a
time – following several years of a tumultuous divorce action –
when the children most needed consistency in their lives.

      As to the quality of the children's relationships with
their parents, the mother testified that the father had failed to
exercise a great amount of his scheduled parenting time.
However, the father indicated that he spent less time with the
children because the drive time to and from his residence was
increased by the destruction of roads and bridges that had
occurred during Hurricane Irene and that the children did not
want to endure long drives on weekdays. Overall, under the
existing circumstances, both parents are actively involved in the
children's lives and, although the mother stated that she was
willing to drive the children halfway to visit with the father,
the proposed move would surely decrease the father's contact with
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the children. Moreover, although the mother had accepted a
position as a registered nurse at a hospital in Kingston and
testified that the children would have larger bedrooms in her
fiancé's home and would be attending private schools, the proof
does not overwhelmingly demonstrate that the move "'would
substantially enhance the child[ren]'s economic, emotional or
educational well-being'" (Matter of Jones v Soriano, 117 AD3d at
1351, quoting Matter of Scheffey-Hohle v Durfee, 90 AD3d 1423,
1428 [2011], appeal dismissed 19 NY3d 876 [2012]; see Rose v
Buck, 103 AD3d at 961). In fact, the record as a whole reveals
that, while the mother stands to personally benefit from a move
to Kingston, such relocation would cause the children to sustain
a loss of certain of their academic and extracurricular pursuits
and established friendships, all of which are so vital at the
ages of these children. As Family Court's determination that
relocating the children would not serve their best interests has
sound evidentiary support, we see no reason to reverse it (see
Matter of Cole v Reynolds, 110 AD3d 1273, 1276 [2013]; Matter of
Pizzo v Pizzo, 94 AD3d 1351, 1353 [2012]; Matter of Munson v
Fanning, 84 AD3d 1483, 1484 [2011]).

     McCarthy, J.P., Rose and Egan Jr., JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
