JENNIFER v. JARED (2006)

The parties were married in 1996 and, pursuant to an oral stipulation that was incorporated but not merged in their judgment of divorce in 2001, they agreed to joint legal custody and “shared physical custody” of their two children.   Petitioner-respondent (petitioner) appeals from an order denying her petition pursuant to article 6 of the Family Court Act seeking to modify the custody and visitation provisions in the judgment of divorce by permitting the children to relocate with her to Illinois and granting the cross petition of respondent-petitioner (respondent) to modify the judgment of divorce by awarding him primary physical custody of the children.

 In order to establish her entitlement to an order permitting the children to relocate with her, petitioner was required to establish “by a preponderance of the evidence that [the] proposed relocation would serve the child[ren]'s best interests” (Matter of Tropea v. Tropea, 87 N.Y.2d 727, 741, 642 N.Y.S.2d 575, 665 N.E.2d 145).   Family Court's determination that the proposed relocation would not be in the children's best interests has a sound and substantial basis in the record and thus will not be disturbed (see generally Matter of Battaglia v. Hopkins, 280 A.D.2d 953, 954, 720 N.Y.S.2d 870;  White v. White, 209 A.D.2d 949, 619 N.Y.S.2d 428, lv. dismissed 85 N.Y.2d 924, 627 N.Y.S.2d 324, 650 N.E.2d 1326).

 We agree with petitioner, however, that the court erred in granting respondent's cross petition.  “It is well established that alteration of an established custody arrangement will be ordered only upon a showing of a change in circumstances which reflects a real need for change to ensure the best interest[s] of the child[ren]” (Matter of Irwin v. Neyland, 213 A.D.2d 773, 773, 623 N.Y.S.2d 18;  see Fuss v. Fuss, 15 A.D.3d 949, 789 N.Y.S.2d 344;  Matter of Di Fiore v. Scott, 2 A.D.3d 1417, 770 N.Y.S.2d 248).   The sole change in circumstances established by the evidence in the record is petitioner's proposed relocation to Illinois, and that proposed relocation does not by itself justify altering the existing custody arrangement inasmuch as petitioner agreed to remain in the area in the event that her petition is denied (see Matter of Glaser v. McFadden, 287 A.D.2d 902, 905, 731 N.Y.S.2d 576).   Consequently, we modify the order by denying respondent's cross petition and vacating the visitation and physical custody provisions.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by denying the cross petition and vacating the third through eighth ordering paragraphs and as modified the order is affirmed without costs.

MEMORANDUM: