Matter of J.F. v J.B.

[*1] Matter of J.F. v J.B. 2009 NY Slip Op 51802(U) [24 Misc 3d 1238(A)] Decided on June 17, 2009 Family Court, Suffolk County Genchi, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 17, 2009
Family Court, Suffolk County

In the Matter of a Proceeding for J.F., Petitioner,

against

J.B., Respondent.



V-3869-01



Petitioner's Attorney

Robert Dapelo, Esq.

110 N. Ocean Avenue

Suite A

Patchogue, New York 11772

Respondent's Attorney

Kimberly Bode, Esq.

Legal Aid Society

885 E. Main Street

Suite # 308

Riverhead, New York 11901

Attorney for the Child

Michael S. Bromberg, Esq.

P.O. Box 2112 Sag Harbor, New York 11963

Joan M. Genchi, J.

This matter came before the Court by way of Order to Show Cause filed by J. F. (hereinafter referred to as "the mother') on February 25, 2009. She seeks an Order permitting the parties child, C. B.- C. (DOB 10-12-2001 and hereinafter referred to as "the child") to relocate to Downey, California, amending the visitation order for J. B., Jr. (hereinafter referred to as "the father), and for such other and further relief as to the Court seems proper and equitable.

BACKGROUND

The child was born out of wedlock on 10-12-2001 in Suffolk County, New York and is now seven (7) years old. Respondent signed an acknowledgment of paternity on 10-14-2001. The parties never resided together.

On 01-11-2002 an order was issued for the father to have EAC supervised visitation with the child. ( J.H.O. McElligott F.C.Suffolk County). Also, on 01-11-2002 the father submitted to a drug test at Seafield. The results of that test were received by this Court and they were negative for all substances.

On July 30, 2002 a Custody and Visitation Order was issued granting the mother sole and residential custody with visitation to the father as agreed upon by the parties. It was further ordered that the father attend and complete an anger management program and submit to a drug and alcohol evaluation at Seafield. (J.H.O. McElligott, F.C. Suffolk County) The results were to be forwarded to the Court. The Court file does not contain any such results

.

The child's father filed a petition with this Court on April 10, 2009 seeking modification of that part of the July 30, 2002 pertaining to visitation. On April 22, 2009 the parties, their attorneys and the child's attorney entered into a stipulation providing as follows :"That the petitioner/father's visitation shall be unsupervised. His visitation shall be as set forth in the order of Hon. Maurice McElligot dated July 20, 2002 and such other and further visitation as the parties shall agree." This stipulation was So Ordered by Family Court Judge Joan M. Genchi on April 22, 2009.

The hearing on this relocation application commenced on June 10, 2009 and continued to June 11, 2009. Petitioner called three witnesses: petitioner's sister, E. F., petitioner and respondent. Respondent called two witnesses: respondent and respondent's mother, M. B.

At the conclusion of petitioner's case the respondent made a motion to dismiss petitioner's petition for failure to prove a prima facia case. The Court reserved decision on respondent's [*2]motion. After considering the petitioner's case in the best light possible, the Court denies respondent's motion.

FACTS

E. F. is the petitioner's only relative living in New York. She sees the child twice a week and occasionally picks him up from day-care or school. Petitioner's mother, step-father and two other sisters (one 12 years old and one 16 years old) all live in California and they all reside together in petitioner's mother's five (5) bedroom home. Petitioner's maternal grandmother presently resides in Russia but is expected to emigrate to the United States in August of 2009. The plan is that she too will reside in the home of petitioner's mother. Petitioner's relocation plan is to also reside with the child in her mother's home "until she gets herself on her feet". Petitioner's mother lives approximately 40 miles outside of Los Angeles in Yorba Linda, California.

Petitioner testified that she discussed this move with her mother two (2) years ago but that she did not tell the respondent about it until she filed the instant petition.

Petitioner's mother and step-father moved from New York to California approximately four (4) years ago. Both are employed. Since then, petitioner's mother has visited New York 3-4 times and petitioner has visited California 4-5 times. The last visit petitioner made to California was to attend a wedding. She went with her partner, "C." and left the child in New York. It is unknown to the Court how many times the child accompanied the petitioner to California.

One of the stated reasons petitioner seeks an order permitting the child to relocate is: "better financial conditions."

At the present time, petitioner resides in Yaphank, New York in what she described as a "semi-decent neighborhood, not a bad neighborhood." She claims to pay $1,200.00 per month (including utilities) for a two bedroom basement apartment with a living room, kitchen and bathroom. No lease was produced. The apartment is in a home located next to the fire house. She is gainfully employed as a marketing supervisor in the auto sales industry. Her place of employment is across the street from her home. Her take-home pay after taxes and health insurance and a deduction of $35.00 for her 401K plan is $740.00 bi-weekly ($19,240.00 disposable income per annum). No tax return of pay stub was provided to the Court. The respondent pays $100.00 per week to petitioner as and for child support ($5,200.00 additional disposable income per annum for petitioner). All tolled, petitioner's disposable income at the time of this hearing, including the child support, is $24, 440.00 per annum. The child receives free lunches at school. Should petitioner forgo the 401K contribution her disposable income would increase $910.00 per annum to $25,350.00.

According to her testimony, her fixed monthly expenses including rent, gasoline, [*3]automobile insurance, day care, food, cell phone, health insurance and credit card are approximately $2,090.00 (25,080.00 per annum). This does not contemplate clothing for herself or the child or the child's school supplies, school pictures, or school field trips.

Petitioner's partner, is gainfully employed at McArthur Airport located in the Town of Islip, New York. Petitioner avers that although "C." spends 3-4 nights per week at the petitioner's residence she does not share any of the household expenses nor does she make any contribution to the household. The Court does not find this testimony credible. It is noteworthy that the child refers to "C." as "step-com". It was explained to the Court that this is a combination of C. and mom forming a version of "step-mom." This indicates to the Court that she does indeed spend significant time at the petitioner's residence. It is inconceivable to the Court that "C." does not contribute financially to the petitioner's household. In addition, the Court is surprised that petitioner is able to continue to make contributions of $35.00 per pay period to her 401K plan in the face of her alleged inability to "put food on the table."

Petitioner denied that her motivation for seeking to relocate to southern California was because her partner came from the same approximate area of California. When asked if "C." would be relocating with her she answered that it was "up in the air" and "they are talking about it." The Court does not find it credible that in part, her motivation for seeking the relocation has nothing to do with her partner..

It is uncontroverted that respondent has failed to pay child support since April 6, 2009 and at the time of this hearing he is $1,100.00 in arrears. Respondent testified that his hours at his place of employment were cut back from 58 hours per week to 35 hours per week. It is also uncontroverted that he and petitioner spoke of the arrears and came to a verbal agreement concerning them. Respondent's hours have increased and he has promised petitioner to make up his arrears and keep current. This remains to be seen.

Much was made of the child support order the parties entered into approximately 8 months ago. It is the understanding of this Court from the parties testimony that prior to the entry of the child support order respondent did voluntarily pay child support to the petitioner. Moreover, the current child support order of $100.00 per week resulted from an agreement between the parties. The Court is not aware of any pending petition to modify that order or any pending petition claiming a violation of that order. According to the testimony of the respondent, with regard to the day care expenses, during the negotiations between the parties, he offered to pay one-half the day-care cost but petitioner refused this, and instead she agreed that she would pay all the day-care expenses.

Petitioner testified that once in California she will be able to save the current day- care expenses ($70.00 per week) because her sixteen (16) year old sister will pick the child up from his school bus stop and watch him. The Court finds this to be presumptive on the part of the petitioner.. Moreover, the Court notes that petitioner can save the present day- care expenses without relocating to California and placing the daily care after school care of the child in the [*4]hands of her 16 year-old sister. The child's paternal grandmother has repeatedly offered to provide after school day-care for the child and the petitioner has refused. The paternal grandmother works part-time in the mornings as a cab driver and is available afternoons to pick the child up from his bus stop. It does appear to the Court that petitioner and the paternal grandmother have a positive relationship.

Petitioner plans to obtain employment in California as an event planner earning between $14.00 and $15.00 per hour which is , according to her testimony, what she earns per hour at her present position. However, petitioner did not know how many hours per week she will be working as an event planner. Petitioner spoke of the possibility of commissions but was unaware as to how the commissions would work. Moreover, petitioner was vague and had no idea of what her responsibilities would be except that the position would entail sales of wedding necessities to brides and that she would make appointments with these brides from leads supplied to her by her employer. Petitioner explained that she had no experience in this field and needed to be trained for this prospective position. Her workplace would be a 25 minute ride from her mother's home. She did not contact her prospective employer when she last visited California.

Petitioner argues that her financial situation will improve in California because she will be living with her mother and paying no rent "until she gets on her feet". She concedes that she will still have expenses such as cell phone, car insurance, gasoline, food, school supplies, etc. Petitioner expects to reside with her mother for several months until she saves enough money for an apartment for herself and the child. Until that time she will be sharing a bedroom in her mother's home with the child.

No evidence was offered as to the cost of housing or the cost of living in the area where her mother lives except petitioner's testimony that a two bedroom apartment there would be $1,000.00 per month, (including utilities), a saving of $200.00 per month. Petitioner did not look at apartments during her recent visit to California.

It does not appear to the Court that petitioner's plan, which is speculative at best, is anything more than a lateral financial move and due to its speculative nature may prove to worsen petitioner's financial position. The only savings relocation would provide, by petitioner's own testimony, is the child care...which as the Court pointed out above can be saved by accepting the paternal grandmother's offer... and $200.00 per month rent. She can currently improve her position by not contributing to the 401K plan at her place of employment. Moreover, the Court does not believe that "Candice" does not contribute financially to the household.

Petitioner also contends that the relocation will provide a better environment for the child to live.

At the present time the child attends Charles E. Walters Elementary School. This school [*5]is located in the Longwood School District. Should the Court allow the child to relocate he would be attending the Bryant Ranch Elementary School in Placentia-Yorba Linda Unified School District so long as he resides in the petitioner's mother's home. Petitioner did not visit this school. The Court received no competent evidence as to the comparison of these two school districts. Since petitioner does not know where she will reside "once she gets on her feet" no information was available as to where the child will eventually attend school once on California.

The child is presently receiving average grades and participated in basketball at school this year.Both parties attend school functions and meetings. There was testimony that the child was exhibiting behavior problems in school. It was uncontroverted that the school is addressing these problems and calls the respondent when there is a behavior problem because respondent is able to diffuse it. Respondent reports that the child is doing better now. Respondent contends that the child listens to him 100% but that petitioner has problems with the child's behavior.

Petitioner described the neighborhood where her mother resides as on the side of a mountain in a nice suburban area. Petitioner stated there is less crime where her mother resides however, no competent evidence as to this was offered. Morever, since petitioner does not know where she will reside after she "gets on her feet" the Court can only view her mother's residence at her mother's as temporary. The Court has no way of knowing what the neighborhood in which the child will eventually be living in will be like.

Petitioner also stated that there were sex offenders living in Yaphank and Mastic. However, no competent evidence was offered in this regard. No evidence was offered as to whether or not sex offenders live in southern California.

The parties testified that the child has many friends living on Long Island. He has cousins his own age and neighborhood friends, and a friend his age living upstairs from his present home. The child has relationships with respondent's family including the respondent's girlfriend, paternal grandmother, aunts and cousins. He has relationships with the petitioner's partner, "Candice", and petitioner's sister, Emilia. At one time or the other, petitioner and/or respondent have called upon these relatives and friends for assistance with picking up the child or child care and they have positively responded.

Respondent resides in a two (2) bedroom home in Mastic. He has a house-mate. His rent is up to date. He does not drive however, his mother drives him to work and his girlfriend brings him home. It is unclear to the Court whether or not respondent sleeps in the living room or with the child when the child sleeps over. In the event the respondent does share a bed with the child this must end immediately.

Respondent has continually exercised visitation with the child from the time of the child's birth. Although the parties never resided together, he saw the child on an almost daily basis prior [*6]to the 2002 Visitation Order. He has exercised his rights of visitation "as the parties shall agree" and spends as much time with the child as the petitioner will agree. The parties appear to have a cooperative relationship with each other for the benefit of the child and that is to their credit.

Petitioner proposed a visitation plan should she be permitted to relocate the child to California. The plan would require the purchase of round trip airline tickets for the child and would require the child to travel alone from California to New York and back. Petitioner offered to bear the full cost of the air travel. The Court does not believe that petitioner will be financially able to do so.

Petitioner wishes to better herself by attending college. She views her family in California as a child-care resource that would enable her to do this. Apparently, petitioner and respondent have spoken of this in the past. Respondent testified that he has offered to take custody of the child so that she can pursue her college education.

DECISION AND ORDER

The party seeking to relocate has the burden of establishing, by a preponderance of the evidence, that the proposed relocation would be in the child's best interests. Petroski v. Petroski, 24 AD3d 1295 (4th Dep't 2005)."Each relocation request must be considered on its own merits with due consideration of all the relevant facts and with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child." Matter of Tropea v. Tropea, 87 NY2d 727 642, N.Y.S.2D 575 ,(1996). The impact of relocation on the relationship between the child and the non-custodial parent remains a "central concern". 87 NYS2d at 736, 642 NYS2d at 579.

The Court finds that the non-custodial parent has a strong bond and relationship with the child. He has vigorously exercised his visitation rights with the child moreover, the child's school depends upon respondent to assist in diffusing situations at the school where the child has behavioral issues. While it is true that he has failed to pay court ordered child support for twelve weeks, apparently, the parties have reached a verbal agreement as to the method for respondent to catch up and keep current. He has voluntarily supported the child from the time of child's birth both financially and emotionally.

The Court finds that the child has strong bonds with the family and friends of both the parties here in New York and that he has friends of his own here in New York.

The Court finds that the child does not have any friends in California nor does he have any strong bonds or relationships with petitioner's relatives in California .

The Court finds that petitioner's proposed relocation will not in any way enhance the child's standard of living. Financially, petitioner will not be any better off than she is now and [*7]may become worse off. Moreover, she will be relocating the child from a two bedroom home where he has his own bedroom to an environment where he will sharing a bedroom with petitioner. At the present time the petitioner and the child have private living quarters, their own living room, their own kitchen, their own bathroom. The child has a quiet place to do his homework. From all the Court has heard it is clear to the court that at the petitioner's mother's home the atmosphere will be distracting and chaotic!

Petitioner has no solid plan. There is no guarantee that petitioner's mother will allow petitioner and the child to remain in her home indefinitely. Petitioner has not located an apartment. She needs training for her prospective employment in sales. Petitioner has no track record as a sales person. It is unknown what her income will actually be.

The finances of both these parties leads the Court to believe that the proposed visitation plan would be too costly for petitioner. The Court does not believe that the respondent has sufficient resources to travel across the country to visit his son in any meaningful manner. The Court fears that this factor alone will lead to the non-custodial parent having no visitation at all. Moreover, it is not in the best interest of a seven (7) year old child to travel across the country alone.

Therefore, based upon all the proof offered and entered into evidence ( both testimonial and documentary,) and based upon the credibility and demeanor of the parties the Court finds that the petitioner has not established by a preponderance of the evidence that the proposed relocation is in the best interest of the child and therefore petitioner's application to relocate the child is denied and the petition is hereby dismissed without prejudice.

The forgoing constitutes the decision and an order of this Court.

Enter,

_________________________

Judge of the Family Court

Dated_______________