        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

48
CA 14-01009
PRESENT: SMITH, J.P., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ.


RYAN M. FORRESTEL, PLAINTIFF-RESPONDENT,

                    V                               MEMORANDUM AND ORDER

MARGUERITA M. FORRESTEL, DEFENDANT-APPELLANT.


LEONARD G. TILNEY, JR., LOCKPORT, FOR DEFENDANT-APPELLANT.

JOHN P. PIERI, BUFFALO, FOR PLAINTIFF-RESPONDENT.

KRISTIN L. ARCURI, ATTORNEY FOR THE CHILDREN, BUFFALO.


     Appeal from an order of the Supreme Court, Erie County (Tracey A.
Bannister, J.), entered September 19, 2013. The order awarded the
parties joint custody of their children and prohibited relocation of
the children to the Netherlands.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Defendant mother appeals from an order that, inter
alia, awarded the parties joint custody of their children and denied
her request to relocate with the children to the Netherlands.

     Contrary to the mother’s contention, Supreme Court’s explanation
of its reasons for rejecting her expert’s opinion “is supported by the
record, and thus it cannot be said that the court arbitrarily rejected
[that] opinion” (Matter of Alexandra H. v Raymond B.H., 37 AD3d 1125,
1126; see Matter of Hopkins v Wilkerson, 255 AD2d 319, 319-320).
Contrary to the mother’s further contention, the court’s determination
that joint custody with plaintiff father is in the children’s best
interests “is supported by a sound and substantial basis in the record
and thus [should] not be disturbed” (Wideman v Wideman, 38 AD3d 1318,
1319 [internal quotation marks omitted]). Although the custody trial
included evidence of acrimony between the parties, the record supports
the court’s determination that “the parties are not so embattled and
embittered as to effectively preclude joint decision making”
(Capodiferro v Capodiferro, 77 AD3d 1449, 1450 [internal quotation
marks omitted]).

     The mother contends that the court erred in denying her request
to relocate with the children to the Netherlands. We reject that
contention. Inasmuch as this case involves an initial custody
determination, “it cannot properly be characterized as a relocation
                                 -2-                            48
                                                         CA 14-01009

case to which the application of the factors set forth in Matter of
Tropea v Tropea (87 NY2d 727, 740-741 [1996]) need be strictly
applied” (Matter of Saperston v Holdaway, 93 AD3d 1271, 1272, appeal
dismissed 19 NY3d 887, 20 NY3d 1052; see Matter of Moore v Kazacos, 89
AD3d 1546, 1546, lv denied 18 NY3d 1052). “Although a court may
consider the effect of a parent’s relocation as part of a best
interests analysis, relocation is but one factor among many in its
custody determination” (Saperston, 93 AD3d at 1272; see Matter of
Quistorf v Levesque, 117 AD3d 1456, 1457). Here, the court “properly
determined that the children’s relationship with [the father] would be
adversely affected by the proposed relocation because of the distance
between [Erie] County and [the Netherlands]” (Matter of Jones v
Tarnawa, 26 AD3d 870, 871, lv denied 6 NY3d 714; see Matter of Ramirez
v Velazquez, 91 AD3d 1346, 1347).

     Finally, we reject the mother’s contention that the court erred
in refusing to allow the testimony of a therapist who provided
treatment to one of the children. The Attorney for the Child “did not
consent to the disclosure of confidential communications between the
child and [her] therapist” (Matter of Ascolillo v Ascolillo, 43 AD3d
1160, 1161; cf. Matter of Billings v Billings, 309 AD2d 1194, 1194).




Entered:   February 6, 2015                    Frances E. Cafarell
                                               Clerk of the Court
