                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered:   January 7, 2016                 517721
                                                       518767
_____________________________________

In the Matter of ANDREW HILL,
                    Appellant,
      v
                                            MEMORANDUM AND ORDER
ASHLEY DEAN,
                    Respondent.

(And Four Other Related Proceedings.)
_____________________________________


Calendar Date:   November 17, 2015

Before:   Lahtinen, J.P., Garry, Rose, Lynch and Devine, JJ.

                             __________


     Michelle I. Rosien, Philmont, for appellant.

     Allen E. Stone, Vestal, for respondent.

     Margaret McCarthy, Ithaca, attorney for the child.

                             __________


Garry, J.

      Appeals (1) from an order of the Family Court of Chemung
County (Brockway, J.), entered September 20, 2013, which, among
other things, dismissed petitioner's application, in a proceeding
pursuant to Family Ct Act article 6, for custody of the parties'
child, and (2) from an order of said court, entered March 24,
2014, which, among other things, in a proceeding pursuant to
Family Ct Act article 6, granted respondent's motion to dismiss
the petition.

      Petitioner (hereinafter the father) and respondent
(hereinafter the mother) are the parents of a son (born in 2011).
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The parties lived together from July 2011 until January 2012,
when the mother moved with the child to North Carolina without
advising the father. Upon reaching North Carolina, the mother
obtained an order of protection against the father. The father
commenced a custody proceeding in January 2012 and the mother
cross-petitioned for custody. Family Court awarded temporary
legal and physical custody to the father. In September 2013,
following a fact-finding hearing, the court dismissed the
father's custody petition and granted the mother's cross
petition, awarding sole legal and physical custody of the child
to the mother and providing scheduled parenting time to the
father. The father petitioned to modify that order in October
2013, and Family Court conducted a hearing in March 2014. The
mother moved to dismiss the modification petition at the close of
the father's proof, and the court granted the motion. The father
appeals from the order granting the mother's cross petition for
custody and from the order dismissing his modification petition.

      As an initial matter, the record does not support the
father's contention that Family Court's custody determination was
improperly based upon extrajudicial information in the form of
the findings made by the North Carolina court that granted the
order of protection. Contrary to the father's claim that the
findings were not admitted into evidence, they were included in
an audio recording of the North Carolina proceeding that was
admitted with the consent of all parties. Moreover, Family Court
neither substituted the North Carolina findings for its own nor
relied upon them as the premise for its custody determination.
Instead, the court referenced the North Carolina findings as part
of its preliminary description of the matter's procedural
history, and based its custody determination upon a subsequent,
separate discussion of the testimony and evidence adduced during
the fact-finding hearing, as well as the testimony taken in North
Carolina. The court's brief footnote referencing allegations
made by the father's ex-wife in a separate custody proceeding
does not appear to have served as a basis for the determination.
There is no record evidence supporting the father's claim that
Family Court was biased.
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      Turning to the substance of the custody determination,
Family Court correctly noted that, despite the mother's
relocation to North Carolina, strict application of the factors
cited in Matter of Tropea v Tropea (87 NY2d 727 [1996]) was not
required as there had not been a prior custody award (see
Ostrander v McCain, 68 AD3d 1480, 1481 [2009]; Furman v Furman,
298 AD2d 627, 628-629 [2002], lv dismissed and denied 99 NY2d 575
[2003]). An initial determination of the best interests of the
child is premised upon consideration of such factors as "the
parents' past performance and relative fitness, their willingness
to foster a positive relationship between the child and the other
parent, as well as their ability to maintain a stable home
environment and provide for the child's overall well-being"
(Matter of Varner v Glass, 130 AD3d 1215, 1216 [2015] [internal
quotation marks and citations omitted]). A parent's decision to
move to a distant location and the effect of any alleged domestic
violence are significant considerations that must be taken into
account in determining a child's best interests (see Domestic
Relations Law § 240 [1] [a]; Matter of Bush v Lopez, 125 AD3d
1150, 1150 [2015]; Matter of Melissa K. v Brian K., 72 AD3d 1129,
1131 [2010]).

      Here, Family Court determined that the mother's decision to
relocate to North Carolina was "closely intertwined" with her
allegations of domestic violence. The court credited the
mother's testimony that the father was controlling and verbally
abusive throughout the relationship, especially after the mother
became pregnant. The mother testified that the father frequently
called her insulting and obscene names, isolated her from friends
and family, and finally threatened to hit her in the face.
Following this threat, the mother became fearful that the
father's verbal abuse would escalate to physical violence, and
she relocated to North Carolina with the child a few days later.
According the appropriate deference to the court's credibility
assessments, the record supports its conclusion that the mother
did not relocate to separate the father from the child, but
instead acted in good faith to escape the threat of domestic
violence and obtain the support of family members residing in
North Carolina, including her father, stepmother and siblings
(see Matter of Clarke v Boertlein, 82 AD3d 976, 977-978 [2011];
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Malcolm v Jurow-Malcolm, 63 AD3d 1254, 1257 [2009]).

      Although the father testified that his relationship with
the mother was "fine" and that they had no more arguments than
any normal couple, Family Court noted that he had testified
differently during the North Carolina proceeding, acknowledging
that he had threatened to hit the mother on one occasion and had
taken out stress and anxiety upon her through verbal abuse
throughout the relationship. During that prior proceeding, the
father also acknowledged that he had anger issues related to his
obsessive compulsive disorder and other mental health issues.
The North Carolina protective order included provisions requiring
him to remain in counseling, take his prescribed medication and
complete anger management and domestic violence programs in New
York. Family Court found that the father had violated the order
based upon his testimony during the fact-finding hearing that he
had failed to comply with these requirements. His testimony that
he no longer needed these measures because his symptoms had
improved was unsupported by medical proof or other objective
evidence (see Matter of Carpenter v La May, 241 AD2d 625, 626
[1997]).

      As for the parties' relative fitness, Family Court credited
the mother's testimony that she was the child's primary caretaker
before she left for North Carolina. The mother testified that
when she was at work, the child was cared for by the paternal
grandmother, who lived across the road, and that, even when the
father was at home, he would leave the child at the grandmother's
house until the mother returned. The paternal grandmother also
cared for the father's two older children from a previous
marriage, who slept at her home and spent most of their time
there during the father's periods of parenting time with them.

      The father challenged the mother's fitness, contending that
the child was injured or placed at risk of injury on several
occasions as a result of her alleged inexperience and
inattentiveness. However, Family Court found that most of these
incidents occurred shortly after the child's birth, that the
father and paternal grandmother had elected to criticize the
mother's shortcomings rather than to assist her with childcare
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and housework during this period, and that no subsequent
incidents had occurred as the mother matured and gained
experience. We defer to Family Court's credibility determination
that the father's witnesses falsified or exaggerated many of
their claims about the mother's alleged failings, a finding that
was well supported by the record.1 The court further found that
the father and paternal grandmother had sought to build evidence
supporting their claims of the mother's inadequacy by repeatedly
photographing the child's naked body after visits with the mother
and frequently and unnecessarily taking him to the doctor for
treatment of rashes and minor injuries that had allegedly
occurred in the mother's care. This finding was supported by
testimony from the child's doctor, who stated her opinion that
many of these visits were not medically necessary and that she
eventually discharged the child from her practice because of the
high level of conflict between the parents.

      As to the suitability of the parties' homes and their
ability to provide for the child, the mother had married after
moving to North Carolina and, by the time of the fact-finding
hearing, resided with her husband in a two-bedroom apartment.
The mother and her husband, who was employed as an assistant
store manager, had flexible work hours that permitted them to
share the care of the child. The mother's wages as a customer
associate for a food chain were relatively low at the time of the
hearing, but she expected to increase her earnings once she was
able to transfer her New York certification as a nurse's aide to
North Carolina. The father worked long hours as a bus driver,
earning a reported income of $250 weekly, and also operated a
separate party and entertainment business on evenings and
weekends; this evidence supported Family Court's determination
that he was generally unavailable to spend time with the child or
provide for his intellectual and emotional development, and that
most of the child's care would be provided by the paternal
grandmother if he were placed in the father's physical custody.


     1
        For instance, the paternal grandmother testified that the
mother regularly arrived late for visitation exchanges, a claim
that was subsequently wholly refuted by documentary evidence.
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      The testimony revealed that, following the parties'
separation, the father unilaterally suspended the mother's
visitation, requiring the mother to commence enforcement
proceedings, and also tried to prevent her from visiting the
child when she was in New York for court appearances until he was
court-ordered to allow her to do so. The father's domineering
and verbally abusive behavior toward the mother, his focus on her
shortcomings rather than his own, his failure to recognize and
address his anger management issues and his efforts to build
evidence against her by subjecting the child to unnecessary
medical examinations supported the court's determination that if
the father were awarded custody, he would continue his past
behavior of seeking to alienate the child from the mother rather
than supporting and encouraging their relationship (see Matter of
Danielle TT. v Michael UU., 90 AD3d 1103, 1103-1104 [2011]).
While the placement of the child with the mother in North
Carolina separates him from his half siblings in New York, the
general preference for keeping siblings together when possible
"has become more complicated due to changing family dynamics"
(Matter of Tavernia v Bouvia, 12 AD3d 960, 962 [2004]; accord
Matter of Bush v Bush, 104 AD3d 1069, 1073 [2013]), and the
siblings will have contact during the extended periods of
parenting time in New York provided to the father under the
custody order. Although not dispositive, the attorney for the
child upon appeal supports Family Court's determination (see
Matter of Lawrence v Kowatch, 119 AD3d 1004, 1006 n 2 [2014]).
Taken as a whole, the record provides the requisite sound and
substantial basis for the court's determination that it was in
the child's best interests to award sole legal and physical
custody to the mother (see Matter of Claflin v Giamporcaro, 75
AD3d 778, 780 [2010], lv denied 15 NY3d 710 [2010]; Matter of
Melissa K. v Brian K., 72 AD3d at 1132; Malcolm v Jurow-Malcolm,
63 AD3d at 1258).

      Family Court did not err in dismissing the father's
modification petition. "In any modification proceeding, the
threshold issue is whether there has been a change in
circumstances since the prior custody order significant enough to
warrant a review of the issue of custody to ensure the continued
best interests of the child[]" (Matter of Patricia P. v Dana Q.,
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106 AD3d 1386, 1386 [2013] [citations omitted]). Here, the
father did not meet this threshold requirement. The modification
petition was filed only a month after the custody order was
entered, and its allegations that the child had suffered from
injury and neglect while in the mother's care were similar to the
father's prior allegations regarding the mother's unfitness that
had just been litigated in the custody proceeding, and also with
his previous efforts to develop medical evidence against the
mother. The North Carolina child protective authorities had
investigated the father's allegations and found them to be
unsubstantiated by the time of the modification hearing. Medical
records indicated that the child's injuries could have resulted
from normal toddler behavior and he was receiving appropriate
medical attention in the mother's care. Further, the evidence
did not support the father's claim that the mother was failing to
facilitate his relationship with the child; among other things,
he acknowledged during the modification hearing that he and the
child communicated almost every day using Skype. According the
appropriate deference to the court's credibility assessments, we
agree with the attorney for the child that the father failed to
establish the requisite change in circumstances (see Matter of
Tyrel v Tyrel, 132 AD3d 1026, 1027 [2015]; Matter of Hamilton v
Anderson, 31 AD3d 935, 936 [2006]).

     Lahtinen, J.P., Rose, Lynch and Devine, JJ., concur.


     ORDERED that the orders are affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
