                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: January 22, 2015                   518055
________________________________

In the Matter of TAMYKA R.
   SPAULDING,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

MATTHEW S. STEWART,
                    Appellant.
________________________________


Calendar Date:   November 21, 2014

Before:   McCarthy, J.P., Garry, Lynch, Devine and Clark, JJ.

                             __________


     Sandra M. Colatosti, Albany, for appellant.

     Paul J. Connolly, Delmar, for respondent.

     Michael S. Barone, Albany, attorney for the child.

                             __________


Garry, J.

      Appeal from an order of the Family Court of Albany County
(M. Walsh, J.), entered November 6, 2013, which granted
petitioner's application, in a proceeding pursuant to Family Ct
Act article 6, to modify a prior order of custody.

      Petitioner (hereinafter the father) and respondent
(hereinafter the mother) are the parents of a child born in 2006.
Approximately two years after the birth of the child, the parents
separated, and the father thereafter relocated from Albany County
to Onondaga County. Since 2012, the mother has had sole legal
and primary physical custody of the child, with the father
exercising parenting time every other weekend and for four weeks
during the summer. In 2013, the mother commenced this
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modification proceeding in Family Court seeking permission to
relocate with the child to Prince William County, Virginia.
Following an evidentiary hearing, including a Lincoln hearing,
the court granted the mother's petition and modified the custody
order to, among other things, provide the father with parenting
time for the duration of the child's summer vacations. The
father appeals.

      The emphasis in a relocation case is on the best interests
of the child (see Matter of Vargas v Dixon, 78 AD3d 1431, 1432
[2010]). All the relevant circumstances should be considered,
taking into account such factors as "each parent's 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 child through suitable visitation
arrangements" (Matter of Tropea v Tropea, 87 NY2d 727, 740-741
[1996]; accord Matter of Weber v Weber, 100 AD3d 1244, 1245
[2012]; see Matter of Hills v Madrid, 57 AD3d 1175, 1176 [2008]).
The party seeking to relocate bears the burden of establishing
that the move is in the child's best interests by a preponderance
of the evidence, and a court's determination will not be
disturbed on appeal when it is supported by a sound and
substantial basis in the record (see Matter of Seeley v Seeley,
119 AD3d 1164, 1166 [2014]; Matter of Weber v Weber, 100 AD3d at
1245-1246; Matter of Herman v Villafane, 9 AD3d 525, 526 [2004]).

      Here, the mother testified that her reason for seeking to
relocate with the child was to allow them to reside with her new
husband, who is employed by the Virginia government. In
opposition, the father contended that the relocation would reduce
the frequency of his contact with the child, negatively impact
his ability to communicate regularly with the child, and strain
the bonds between the child and her paternal relatives. The
testimony adduced during the hearing established that, while both
parents appear to be loving and attentive, the mother has been
more involved in the child's daily life, school activities and
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religious instruction, and in arranging medical appointments.
There was ample evidence that the relocation will substantially
improve the child's quality of life by, among other things,
substituting the high-crime neighborhood in which the mother
currently lives for a comparatively calmer and more secure
environment in Virginia. Family Court also noted that health
insurance benefits will be available to the child through the
husband's employment. Initially the child will be residing in a
large home with the mother, her husband, and some of the
husband's relatives, until the mother and the husband secure
their own housing. Several of the mother's relatives also reside
in Virginia; the relocation will result in the child having more
opportunities for contact with these relatives, although it will
also result in less frequent contact with paternal relatives, as
well as the maternal grandmother who resides near the City of
Albany.

      With respect to the father's ability to maintain a
relationship with the child, although the modified order will
result in the father having fewer periods of parenting time with
the child during the school year, it will instead provide him
with two months of uninterrupted parenting time during the
child's summer recess, as well as alternating holidays and school
vacations, and will in fact represent a net increase in his
overall amount of parenting time. The modified order further
allows the father to have daily telephone or Skype contact with
the child, and places the burden of financing the child's travel
to and from New York on the mother, except when the father is
able to utilize his employment benefits to obtain free air
travel. Upon review, we find that Family Court carefully
balanced the competing factors that were presented in this matter
in an attempt to serve the child's best interests. Considering
the evidence showing the economic benefits of the proposed
relocation that will enhance the child's quality of life,
together with the measures taken to address the father's ability
to maintain regular and meaningful contact with the child under
the modified order, we find that there was a sound and
substantial basis for Family Court's determination, and decline
to disturb it (see Matter of Shirley v Shirley, 101 AD3d 1391,
1393 [2012]; Matter of Armstrong v Crout, 33 AD3d 1079, 1081-1082
[2006]; Long v Long, 252 AD2d 722, 722-723 [1998]).
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McCarthy, J.P., Lynch, Devine and Clark, JJ., concur.



ORDERED that the order is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
