                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: July 7, 2016                        520814
________________________________

In the Matter of ALAN R.
   PERESTAM,
                    Appellant,
      v                                       MEMORANDUM AND ORDER

WENDY A. PERESTAM,
                      Respondent.

(And Another Related Proceeding.)
________________________________


Calendar Date:   May 31, 2016

Before:   Lahtinen, J.P., Egan Jr., Lynch, Devine and Mulvey, JJ.

                               __________


      Jackson Bergman, LLP, Binghamton (Caitlin C. Carrigg of
counsel), for appellant.

      Coughlin & Gerhart, LLP, Binghamton (Keith A. O'Hara of
counsel), for respondent.

     Andrea Mooney, Ithaca, attorney for the children.

                               __________


Lynch, J.

      Appeal from an order of the Family Court of Tioga County
(Keene, J.), entered June 26, 2014, which, among other things,
granted respondent'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 divorced parents of a son and a
daughter (born in 1999 and 2001, respectively). Pursuant to a
2008 stipulation that was incorporated into the parties' judgment
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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 July 2013,
the father filed a petition for modification and enforcement of
the prior custody order, seeking primary physical custody of the
children or, alternatively, to prohibit the mother from
relocating them outside of Tioga County. After Family Court
(Morris, J.) issued a temporary order prohibiting the mother from
relocating the children, she cross-petitioned seeking to modify
the prior custody order to permit her to relocate the children
from the Town of Owego, Tioga County to the Town of Pittsford,
Monroe County – a distance of approximately 115 miles. After
conducing a fact-finding hearing, which spanned over several
months, and two Lincoln hearings, Family Court (Keene, J.), among
other things, granted the mother's petition to relocate the
children finding that it would be in their best interests. The
court also modified the custody order to increase the father's
visitation, with transportation to be provided by the mother.
The father now appeals and we affirm.

      We find that Family Court's best interests determination is
supported by a sound and substantial basis in the record. "'In
contrast to an ordinary modification proceeding, where the
petitioning party must demonstrate a change in circumstances and
that a modification [would be] in the child[ren]'s best
interests, a relocation is accepted as a change in circumstances,
requiring the parent seeking the move to demonstrate that
relocating the child[ren] with the custodial parent is in the
child[ren]'s best interests'" (Matter of Barner v Hampton, 132
AD3d 1098, 1099 [2015], quoting Matter of Adams v Bracci, 91 AD3d
1046, 1046-1047 [2012], lv denied 18 NY3d 809 [2012]). The
mother, as the party seeking to relocate, "bears the burden of
establishing that the move is in the child[ren]'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" (Matter of Spaulding v
Stewart, 124 AD3d 1111, 1112 [2015], lv denied 25 NY3d 903
[2015]; see Matter of Lodge v Lodge, 127 AD3d 1521, 1522-1523
[2015]). In evaluating the bests interests of the children, a
court must consider such factors as "'each parent's reasons for
seeking or opposing the move, the quality of the relationships
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between the child[ren] and the . . . parents, the impact of the
move on the quantity and quality of the child[ren]'s future
contact with the noncustodial parent, the degree to which the
custodial parent's and child[ren]'s [lives] may be enhanced
economically, emotionally and educationally by the move, and the
feasibility of preserving the relationship between the
noncustodial parent and child[ren] through suitable visitation
arrangements'" (Matter of Rebecca HH. v Gerald HH., 130 AD3d
1158, 1159 [2015], quoting Matter of Tropea v Tropea, 87 NY2d
727, 740-741 [1996]).

      The impetus for the mother's desire to relocate to Monroe
County was her engagement to a man who she married during the
pendency of these proceedings. The mother also obtained gainful
employment in Monroe County before the fact-find hearing
concluded. However, she made the decision to move and enrolled
the children in the Pittsford Central School District without
consulting the father. While this demonstrates her exclusion of
the father from major decisions involving the children, there was
ample evidence that the mother and her husband encouraged and
would facilitate a relationship between the father and the
children (see Matter of Bush v Lopez, 125 AD3d 1150, 1150-1151
[2015]; Matter of Gutiy v Gutiy, 40 AD3d 1155, 1156 [2007]).

      We find that the mother and the children's lives would be
significantly enhanced by relocating. The mother had been
unemployed and in the process of liquidating a failing business.
The mother presented evidence that she and the children would
benefit economically, not only from her new employment, but
through the financial security provided by her husband (see
Matter of Spaulding v Stewart, 124 AD3d at 1113; Matter of
Shirley v Shirley, 101 AD3d 1391, 1393 [2012]). The mother also
submitted evidence that the Pittsford Central School District
outperforms the children's current school district on Regents
exams and in the percentage of students attending a four-year
college upon graduation (see Matter of Cole v Reynolds, 110 AD3d
1273, 1275-1276 [2013]; Matter of Hills v Madrid, 57 AD3d 1175,
1177 [2008]). While both parents enjoy an overall positive
relationship with the children, there was evidence that the
father's wife and her daughter have a strained relationship with
the children. Conversely, the record indicates that the mother's
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husband and his children have openly welcomed and supported the
children (see Matter of Bobroff v Farwell, 57 AD3d 1284, 1286
[2008]). Indeed, the parties do not contest that the children
desire to relocate to Pittsford (see Matter of Vargas v Dixon, 78
AD3d 1431, 1432-1433 [2010]).

      While the relocation will negatively impact the father's
ability to attend extracurricular activities during the week, he
has been awarded increased visitation time with transportation to
be provided by the mother (see Matter of Cole v Reynolds, 110
AD3d at 1276). Otherwise, he testified that his prior visitation
schedule would be minimally affected (see Matter of Hills v
Madrid, 57 AD3d at 1176-1177; Matter of Winn v Cutting, 39 AD3d
1000, 1002 [2007]). While the father submitted evidence
regarding alleged instability in the mother's marriage, no single
factor should be treated as dispositive, and Family Court
properly considered all the relevant factors in determining that
relocation was in the best interests of the children (see Matter
of Tropea v Tropea, 87 NY2d at 738; Matter of Winn v Cutting, 39
AD3d at 1002). In our view, Family Court had ample basis to
conclude that the mother met her burden of establishing that
relocating the children was in their best interests.

     Lahtinen, J.P., Egan Jr., Devine and Mulvey, JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
