                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: June 2, 2016                       522157
_________________________________

In the Matter of JERROD FINKLE,
                    Respondent,
      v
                                             MEMORANDUM AND ORDER
LESLIE SCHOLL,
                     Appellant.

(And Another Related Proceeding.)
_________________________________


Calendar Date:    April 25, 2016

Before:    Lahtinen, J.P., Rose, Lynch, Clark and Aarons, JJ.

                              __________


     Cynthia Feathers, Glens Falls, for appellant.

     Andrew H. Van Buren, Hobart, for respondent.

                              __________


Rose, J.

      Appeal from an order of the Family Court of Delaware County
(Becker, J.), entered July 30, 2015, which, among other things,
granted petitioner's application, in a proceeding pursuant to
Family Ct Act article 6, for custody of the parties' child.

      Petitioner (hereinafter the father) and respondent
(hereinafter the mother) are the parents of a daughter born in
2006. After living together in Delaware County for several
years, the parties separated in 2011 and informally shared
parenting time with the child. The parties maintained this
roughly equal arrangement until October 2014, when, without
advance notice to the father, the mother withdrew the child from
school and relocated with her to Saratoga County. The father
then filed a petition seeking custody of the child and the mother
                              -2-                522157

cross-petitioned for the same relief. Additionally, upon
application of the father, Family Court signed an order to show
cause requiring the immediate return of the child to the father's
custody and to her original school district during the pendency
of these custody proceedings. After a fact-finding hearing, the
court granted the father sole legal and physical custody of the
child and liberal visitation to the mother, who now appeals.

      While the mother's relocation "precipitated the
commencement of these proceedings, the matter concerns an initial
custody determination, and, therefore, the strict application of
the factors applicable to relocation petitions is not required"
(Matter of Wright v Stewart, 131 AD3d 1256, 1257 [2015]; see
Matter of Hill v Dean, 135 AD3d 990, 991 [2016]; Matter of
Holland v Klingbeil, 118 AD3d 1077, 1078 [2014]). Despite Family
Court's statement in its decision that it would apply the Tropea
analysis (see Matter of Tropea v Tropea, 87 NY2d 727, 740-741
[1996]), its analysis actually – and appropriately – treated the
mother's relocation as "'a very important factor among the
constellation of factors to be considered in arriving at a best
interests determination'" (Matter of Bush v Lopez, 125 AD3d 1150,
1150 [2015], quoting Matter of Streid v Streid, 46 AD3d 1155,
1156 [2007]). These factors also include "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 Hill v
Dean, 135 AD3d at 991 [internal quotation marks and citations
omitted]).

      The record portrays the parties as loving, attentive
parents, both of whom are equally capable of providing for the
child's overall well-being. The father resides with the child,
his girlfriend, their infant daughter and the girlfriend's
daughter from a previous relationship in the same house that the
child has lived in for almost all of her life. The father
testified that the child has close relationships with the
girlfriend, the other two children and his large extended family
that lives in the area. Currently, the mother resides in a
three-bedroom apartment in Saratoga County. Family Court
discredited her explanation of her reasons for the move and
                              -3-                522157

attributed the relocation primarily to her desire to be closer to
her current boyfriend, who also lives in Saratoga County.

      The secretive manner in which the mother left Delaware
County with the child – effectively removing the child from her
father, his family and the only school she has ever known – is,
in our view, the greatest cause for concern relevant to this
initial custody determination. On October 7, 2014, the mother
pulled the child out of school mid-day and immediately moved with
her to an apartment in Saratoga County. It was not until two
days later that the father learned the full details of the
mother's relocation, most of which were explained in a letter
that the mother did not mail to him until the day that she
executed her long-standing plan.

      As for the mother's allegations of parental unfitness
against the father, we agree with Family Court's assessment that
the father has, on occasion, displayed a lack of proper parental
judgment. However, we note that the mother's professed concerns
did not prevent her from agreeing to their prior arrangement of
shared parenting time, and we defer to the court's credibility
determination that most of the mother's assertions were
exaggerated or fabricated (see Matter of Hill v Dean, 135 AD3d at
992-993; Matter of Matthew K. v Beth K., 130 AD3d 1272, 1274
[2015]). Furthermore, the evidence indicates that the father's
home environment provides greater stability for the child, and he
is more willing than the mother to foster a relationship between
the child and the other parent. Thus, we find a sound and
substantial basis to support the court's decision that an award
of primary physical custody to the father is in the child's best
interests (see Matter of King v Chester, 123 AD3d 1352, 1355
[2014]; Matter of Adams v Morris, 111 AD3d 1069, 1070-1071
[2013]; Matter of Barker v Dutcher, 96 AD3d 1313, 1313-1314
[2012]).

      On the other hand, we disagree with Family Court's award of
sole legal custody to the father. Apart from the mother's
relocation with the child, the record makes clear that the
parents have consistently displayed the ability to cooperate with
one another on matters related to the child's custody and care.
Therefore, we conclude that the record lacks a sound basis for
                              -4-                  522157

stripping the mother of all custodial authority over the child,
and we grant joint legal custody to the parties (see e.g.
Ehrenreich v Lynk, 74 AD3d 1387, 1389-1390 [2010]; Matter of
Blanchard v Blanchard, 304 AD2d 1048-1049 [2003]; Matter of
Darrow v Burlingame, 298 AD2d 651, 652 [2002]).

      Finally, as for the mother's request for more weekly
parenting time, we note that "[Family] Court is afforded wide
discretion in crafting an appropriate visitation schedule" in the
best interests of the child (DeLorenzo v DeLorenzo, 81 AD3d 1110,
1112 [2011], lv dismissed 16 NY3d 888 [2011]). Here, the court
provided the mother with visitation every other weekend,
alternating holidays, half of all of the child's school vacations
and five weeks during the summer. Inasmuch as this schedule
results in frequent and regular access to the child, Family Court
did not abuse its discretion (see Musacchio v Musacchio, 107 AD3d
1326, 1328-1329 [2013]; Matter of Maziejka v Fennelly, 3 AD3d
748, 749 [2004]).

     Lahtinen, J.P., Lynch, Clark and Aarons, JJ., concur.



      ORDERED that the order is modified, on the law and the
facts, without costs, by reversing so much thereof as awarded
sole legal custody of the child to petitioner; award joint legal
custody of the child to petitioner and respondent; and, as so
modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
