                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: July 17, 2014                       516391
_________________________________

In the Matter of KATE S.
   SEELEY,
                    Respondent,
      v

GEORGE B. SEELEY,
                      Appellant.

ATTORNEY FOR THE CHILD,
                    Appellant.

(Proceeding No. 1.)
_________________________________
                                              MEMORANDUM AND ORDER
In the Matter of GEORGE B.
   SEELEY,
                    Appellant,
      v

KATE SEELEY,
                      Respondent,
      and

MARY A. KLEIN, Formerly Known
   as MARY A. SELLERS,
                    Appellant.

ATTORNEY FOR THE CHILD,
                    Appellant.

(Proceeding No. 2.)

(And Another Related Proceeding.)
_________________________________


Calendar Date:     May 28, 2014

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

                               __________
                              -2-                516391

      Monica Carrascoso, Cooperstown, for George B. Seeley and
another, appellants.

      Joseph A. Nalli, Fort Plain, for attorney for the child,
appellant.

     Carol Malz, Oneonta, for respondent.

                           __________


Rose, J.

      Appeals from an order of the Family Court of Otsego County
(Burns, J.), entered January 29, 2013, which, among other things,
dismissed petitioner's application, in proceeding No. 2 pursuant
to Family Ct Act article 6, to modify a prior order of custody.

      George B. Seeley (hereinafter the grandfather) was granted
custody of a child (born in 2004) of his daughter, Kate S. Seeley
(hereinafter the mother), pursuant to a 2005 consent order. A
subsequent consent order entered in 2009 provided that the mother
was to have visitation once a week as she and the grandfather
could agree. The 2009 order also provided that the maternal
grandmother, respondent Mary A. Klein (hereinafter the
grandmother), who is no longer married to the grandfather and
lives in California, would be allowed four visits per year with
the child in New York for seven days and a two-week visit in
California during the summer. The mother, claiming that the
grandfather interfered with her ability to exercise visitation,
commenced proceeding No. 1 in 2012 to enforce the 2009 order.
The grandfather then commenced proceeding No. 2 seeking
permission to relocate with the child, and the mother responded
with a modification petition seeking physical custody of the
child. Following a fact-finding hearing, Family Court dismissed
the grandfather's relocation proceeding and awarded the mother
visitation every weekend throughout the school year, alternating
weeks during summer vacation and certain holidays. The court
made no mention of the grandmother's visitation. The
grandfather, grandmother and the attorney for the child now
appeal.
                              -3-                516391

      We are not persuaded that Family Court erred by denying the
grandfather's request to relocate with the child to the Village
of Saranac Lake in Franklin County, which is approximately four
hours away from the mother's residence. It is well settled that
the party seeking to relocate must show "by a preponderance of
the credible evidence that the proposed move is in the child['s]
best interests" (Matter of Shirley v Shirley, 101 AD3d 1391, 1392
[2012]; accord Matter of Scheffey-Hohle v Durfee, 90 AD3d 1423,
1425 [2011], appeal dismissed 19 NY3d 876 [2012]). The relevant
factors to be considered include the "'reasons for seeking or
opposing the move, the quality of the relationships between the
child and the custodial and noncustodial parents, the impact of
the move on the quantity and quality of the child's future
contact with the noncustodial parent, the degree to which the
custodial parent's and child's life may be enhanced economically,
emotionally and educationally by the move, and the feasibility of
preserving the relationship between the noncustodial parent and
the child through suitable visitation arrangements'" (Matter of
Weber v Weber, 100 AD3d 1244, 1245 [2012], quoting Matter of
Tropea v Tropea, 87 NY2d 727, 740-741 [1996]).

      Family Court concluded that the grandfather failed to
establish that the move would improve his financial situation.
The court found that his desire to provide more opportunity for
the child to engage in winter sports, at the cost of having less
time with his mother, was misguided. The court also concluded
that, given the distance involved, the mother's limited resources
and the grandfather's demonstrated hostility with respect to
transporting the child the 10-mile distance between the parties'
current residences, the proposed move would have a significant
negative impact on the mother's access to the child. As the
court's conclusion denying relocation is supported by a sound and
substantial basis in the record, we decline to disturb it (see
Matter of Rose v Buck, 103 AD3d 957, 960 [2013]; Matter of Pizzo
v Pizzo, 94 AD3d 1351, 1353 [2012]; Matter of Munson v Fanning,
84 AD3d 1483, 1485 [2011]).

      With respect to the attorney for the child's contention
that the mother's visitation schedule should be modified so that
the child may remain with the grandfather for one weekend per
month in order to be able to engage in recreational activities
                              -4-                516391

with him, we note that it is within Family Court's broad
discretion to fashion an appropriate visitation schedule based on
the best interests of the child (see Lo Presti v Lo Presti, 40
NY2d 522, 527 [1976]; Matter of Hayward v Thurmond, 85 AD3d 1260,
1262 [2011]; Matter of Marshall v Bradley, 59 AD3d 870, 870-871
[2009]). Here, the mother was entitled to weekly visitation by
the terms of the prior order, and her original petition was based
on the allegation that she had encountered difficulty in
obtaining the grandfather's agreement to that schedule. Family
Court affixed blame on both parties for the difficulties,
concluded that the mother had made significant progress in
dealing with her physical and mental issues and, given her close
relationship with the child, concluded that visitation pursuant
to a fixed schedule would reduce uncertainty and promote the
child's best interests.

      While we see no basis for disturbing Family Court's
determination that it is in the child's best interests to have a
set schedule of visitation with the mother, we must agree with
the attorney for the child that the schedule devised by the court
gives such extensive time to the mother during the school year
that the child is effectively deprived of any recreational time
in his own home with the grandfather on days when school is not
in session. The schedule provides visitation to the mother in
her home located away from the child's neighborhood and school
friends on every weekend during the school year from Friday
evening through Sunday evening and, when school is closed on
Mondays, through Monday evening. The mother also has visitation
during every Christmas and February break. In alternate years,
the child will spend the Thanksgiving break, Christmas Eve,
Christmas Day and his birthday with the grandfather; otherwise,
virtually all non-school days during the school year are
allocated to the mother. Family Court made no finding that it is
in the child's best interests to have such severely limited
opportunities for recreation with his school friends and so
little free time with his grandfather. Nor do we find a sound
and substantial basis in the record that would support such a
finding.

      While the preferences of a child are not dispositive, they
offer some indication of his or her best interests and are a
                              -5-                516391

factor to be taken into account in making custody and visitation
decisions (see Matter of Rivera v LaSalle, 84 AD3d 1436, 1438
[2011]; Matter of Flood v Flood, 63 AD3d 1197, 1198-1199 [2009];
see generally Matter of Kilmartin v Kilmartin, 44 AD3d 1099, 1102
[2007]). Here, no Lincoln hearing was conducted due to what
Family Court described as the "adamant objection" of the attorney
for the child. Further, the court's decision does not reflect
that the child's wishes were either known to it or considered by
it in devising the visitation schedule. Accordingly, we grant
the request of the attorney for the child and remit the matter to
Family Court to determine in its discretion whether a Lincoln
hearing would now be helpful and, in any event, to consider the
wishes of the child in determining whether a modification of the
visitation schedule is warranted to allow the grandfather and
child to spend at least some scheduled recreational time together
on weekends and holiday breaks during the school year.

      Finally, the parties and the attorney for the child all
agree that Family Court should have accounted for the
grandmother's visitation with the child in its order. The mother
adds only that the amount and timing of the grandmother's
visitation should be reconsidered upon remittal in light of the
parties' continued hostility and her own schedule of visitation.
Inasmuch as Family Court's failure to mention the grandmother's
visitation in its decision appears to have been a mere oversight,
we agree that, upon remittal, the court should also determine an
appropriate schedule of visitation for her.

     Peters, P.J., Lahtinen, Garry and Devine, JJ., concur.
                              -6-                  516391

      ORDERED that the order is modified, on the law, without
costs, by reversing so much thereof as awarded visitation to Kate
S. Seeley and failed to award visitation to respondent Mary A.
Klein; matter remitted to the Family Court of Otsego County for
further proceedings not inconsistent with this Court's decision,
and, pending said proceedings, the visitation terms of said order
shall remain in effect on a temporary basis; and, as so modified,
affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
