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

803
CAF 14-01000
PRESENT: SMITH, J.P., PERADOTTO, CARNI, VALENTINO, AND WHALEN, JJ.


IN THE MATTER OF SAMANTHA J. MOREDOCK,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

ANTHONY T. CONTI, RESPONDENT-APPELLANT.
--------------------------------------------
IN THE MATTER OF ANTHONY T. CONTI,
PETITIONER-APPELLANT,

                    V

SAMANTHA J. MOREDOCK, RESPONDENT-RESPONDENT.


THE ABBATOY LAW FIRM, PLLC, ROCHESTER (DAVID M. ABBATOY, JR., OF
COUNSEL), FOR RESPONDENT-APPELLANT AND PETITIONER-APPELLANT.

TED A. BARRACO, ROCHESTER, FOR PETITIONER-RESPONDENT AND RESPONDENT-
RESPONDENT.

TANYA J. CONLEY, ATTORNEY FOR THE CHILD, ROCHESTER.


     Appeal from an order of the Family Court, Monroe County (Patricia
E. Gallaher, J.), entered August 23, 2013 in a proceeding pursuant to
Family Court Act article 6. The order, among other things, granted
sole custody and primary physical residence of the subject child to
Samantha J. Moredock.

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

     Memorandum: Respondent-petitioner father appeals from an order
that, inter alia, dismissed his petition for enforcement of the
parties’ prior custody order and granted petitioner-respondent
mother’s petition for modification of that custody order by awarding
her sole custody and primary physical residency of the child. The
prior order of custody was entered on consent of the parties and
granted the parties joint legal and physical custody of their child.

     We conclude that Family Court properly denied the father’s
petition, pursuant to which the father sought the return of the child
from Monroe County, where she was relocated by the mother, to Saratoga
County, where the child resided at the time of the custody order and
where the custody order presumes the child will live. We also
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                                                         CAF 14-01000

conclude that the court properly granted the mother’s petition.

     We agree with the father that the court erred in failing to
analyze this matter as one requiring a determination whether the
relocation was in the best interests of the child after considering
all relevant factors (see Matter of Tropea v Tropea, 87 NY2d 727,
740-741). That determination was required “notwithstanding the fact
that the [mother] had already relocated with [the child]” (Matter of
Baxter v Borden, 122 AD3d 1417, 1418, lv denied 24 NY3d 915).
Nevertheless, “the record is sufficient for this Court to make [that]
determination” (Matter of Brian C., 32 AD3d 1224, 1225, lv denied 7
NY3d 717), and we conclude that the mother has demonstrated by a
preponderance of the evidence that her relocation of the child was in
the child’s best interests (see Tropea, 87 NY2d at 740-741). Without
the relocation, the mother, who is the child’s primary caregiver,
would be living in poverty without a stable home. Relocation was
therefore in the best interests of the child because the mother’s move
to Monroe County economically enhanced the lives of the mother and the
child (see id.; Matter of Scialdo v Cook, 53 AD3d 1090, 1092). We
agree with the mother and the Attorney for the Child that in this case
“economic necessity . . . present[s] a particularly persuasive ground
for permitting the . . . move” (Tropea, 87 NY2d at 739). In addition,
the child is doing well emotionally, socially and educationally, and
she is happy with the current arrangement.

     Furthermore, there is no indication that the impact of the
relocation on the child has been detrimental to the child’s
relationship with the father. The mother helped facilitate and did
not interfere with the father’s visitation under the current biweekly
visitation schedule, and she enabled the father and child to have
telephone conversations. The decreased visitation that the child will
have with her half-siblings, while important, is not determinative
(see Matter of Johnson v Johnson, 202 AD2d 584, 585, lv denied 83 NY2d
760, citing Eschbach v Eschbach, 56 NY2d 167). We reject the father’s
contention that we should not permit relocation because the mother
allegedly lied in order to obtain the father’s permission to relocate
with the child. The mother testified that she did not lie, and the
court, which “was ‘in the best position to evaluate the character and
credibility of the witnesses,’ ” found the mother to be more credible
(Matter of Christopher J.S. v Colleen A.B., 43 AD3d 1350, 1350-1351).
Even assuming, arguendo, that the father’s version of events is true,
we note that our analysis “must be based on the best interests of the
child[ ] and not a desire to punish a recalcitrant parent” (Baxter,
122 AD3d at 1418 [internal quotation marks omitted]). We therefore
conclude that relocation with the mother is in the best interests of
the child.

     We further reject the father’s contention that the court erred in
awarding the mother sole custody. The court’s determination “ ‘must
be accorded great deference . . . and should not be disturbed where,
as here, it is supported by a sound and substantial basis in the
record’ ” (Christopher J.S., 43 AD3d at 1350). “The court was ‘in the
best position to evaluate the character and credibility of the
witnesses’ . . . , and we see no reason to disturb the court’s
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                                                         CAF 14-01000

determination that it was in the best interests of the child to award
sole custody to the [mother]” (id.). We conclude that “the record
supports the court’s determination that joint custody is inappropriate
inasmuch as the parties have an acrimonious relationship and are
unable to communicate with each other in a civil manner” (id. at 1350-
1351). Notably, the court granted the mother an order of protection
based on a family offense petition upon determining that the
allegations therein were “established by a fair preponderance of the
evidence” (Matter of Parameswar v Parameswar, 109 AD3d 473, 474).
Finally, we have reviewed the father’s remaining contentions and
conclude that they are without merit.




Entered:   July 2, 2015                        Frances E. Cafarell
                                               Clerk of the Court
