IN RE: Proceeding (2003)

Order, Family Court, Bronx County (Carol Goldstein, Referee), entered on or about October 19, 2000, which granted the petition to modify an order of visitation so as to award custody of the parties' child to petitioner, unanimously affirmed, without costs.

The parties were divorced pursuant to a judgment rendered in the Dominican Republic.   Thereafter, an order of visitation was entered in the Family Court, Bronx County, on or about April 20, 1993, awarding petitioner visitation.   This petition for modification of the order to award legal custody to petitioner was brought in July 1998, alleging a substantial change in circumstances in that respondent had given petitioner physical custody of the child until such time as she was “ready” to resume custody and that the child's performance and attendance at school would be dramatically improved by the award of custody to petitioner.

We agree that this case involves an issue of modification not relocation, since petitioner had already moved to Pennsylvania when the parties decided that the child should reside with him (cf.  Salichs v. James, 268 A.D.2d 168, 708 N.Y.S.2d 385;  Matter of Delgado v. Nazario, 253 A.D.2d 640, 677 N.Y.S.2d 336).   The referee properly evaluated the best interests of the child under the totality of the circumstances (see Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260;  Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 93-95, 447 N.Y.S.2d 893, 432 N.E.2d 765), and petitioner met his burden to show that continued adherence to the existing agreement would not be in the child's best interests (see Steck v. Steck, 307 A.D.2d 819, 763 N.Y.S.2d 54).   Were this case to be assessed on the basis of relocation, the result would be no different since petitioner moved solely to obtain viable employment, respondent has not been denied meaningful access to her son, and it has been demonstrated that the child will thrive in the new location (see Matter of Tropea v. Tropea, 87 N.Y.2d 727, 740-741, 642 N.Y.S.2d 575, 665 N.E.2d 145).