ARTHUR v. GALLETTI (2019)

Order, Supreme Court, New York County (Laura E. Drager, J.), entered May 9, 2018, which, to the extent appealed from as limited by the briefs, after a custody trial, awarded defendant father residential custody of the children with permission to relocate to Lodi, Italy, until the youngest child attains the age of eight, at which time the children shall relocate to the New York metropolitan area, provided that plaintiff mother still works there, unanimously modified, on the law and the facts, to vacate the decretal directive that the children relocate to the New York metropolitan area when the youngest child attains the age of eight, and otherwise affirmed, without costs.

The award of residential custody of the children to defendant has a sound and substantial basis in the record (see Matter of Salena S. v. Ahmad G., 152 A.D.3d 162, 58 N.Y.S.3d 35 [1st Dept. 2017] ).  Upon consideration of all the relevant factors, the court properly concluded that, while the evidence demonstrated that both parties were fit and loving parents, the children's best interests would be served by remaining with defendant.  Defendant acted as the children's primary caregiver, getting them ready for school and feeding them dinner, while plaintiff was often unavailable, choosing to absent herself from the home at the expense of spending time with the children (see Matter of Ivan J. v. Kathryn G., 164 A.D.3d 1151, 83 N.Y.S.3d 454 [1st Dept. 2018] ).

The decision to permit defendant to relocate to Lodi, Italy, also has a sound and substantial basis in the record.  Contrary to plaintiff's contention, the factors set forth in Matter of Tropea v. Tropea, 87 N.Y.2d 727, 642 N.Y.S.2d 575, 665 N.E.2d 145 (1996) ) do not govern this matter, because there was no prior custody order at the time of defendant's relocation, and the court properly considered relocation as one factor in determining the child's best interests (see Matter of Michael B. [Lillian B.], 145 A.D.3d 425, 430, 42 N.Y.S.3d 141 [1st Dept. 2016] ).  The children had already spent a substantial portion of their childhood in Lodi, where they attended school, and they were surrounded by defendant's family, who provided emotional and practical support.

The court however should not have directed that the children return to New York when the youngest child attains the age of eight.  The court concluded that relocation at that point would be in the children's best interests based on their ages and “international pedigree.”  However, the court's reasoning is not so “compelling as to warrant the attendant [further] disruption of the children's lives” (Matter of Lawrence C. v. Anthea P., 79 A.D.3d 577, 579, 912 N.Y.S.2d 216 [1st Dept. 2010];  see also Matter of Eason v. Bowick, 165 A.D.3d 1592, 1593, 85 N.Y.S.3d 307 [4th Dept. 2018], lv denied 32 N.Y.3d 912, 2019 WL 150572 [2019] [this provision “impermissibly purports to alter the parties' custodial arrangement automatically upon the happening of a specified future event without taking into account the child(ren's) best interests at that time”] [internal quotation marks omitted] ).