IN RE: DEMETRIUS C. and Another (2022)

Order, Family Court, New York County (Clark V. Richardson, J.), entered on or about July 29, 2020, which, after a hearing, granted the mother's petition to relocate with the child to Florida, unanimously affirmed, without costs.

Family Court's determination that the mother's relocation with the child to Florida was in the best interests of the child is supported by a sound and substantial basis in the record (see Tropea v. Tropea, 87 N.Y.2d 727, 740–41, 642 N.Y.S.2d 575, 665 N.E.2d 145 [1996]).  The mother has had sole custody of the child since 2009 in accordance with a custody order entered on consent.  In 2015, the father was charged with sexually abusing the parties’ daughter, who no longer has any contact with him (Matter of Demetrius C. [David C.], 156 A.D.3d 521, 522, 66 N.Y.S.3d 484 [1st Dept. 2017], lv dismissed 31 N.Y.3d 926, 72 N.Y.S.3d 23, 95 N.E.3d 325 [2018]).  While the abuse and neglect proceeding was pending, the mother commenced this proceeding and moved with the children to Florida, where she has the benefit of a support system provided by her family, and where she has been able to obtain suitable housing after living in homeless shelters (see Matter of Nadine T. v. Lastenia T., 161 A.D.3d 491, 493, 77 N.Y.S.3d 27 [1st Dept. 2018];  Matter of Melissa Marie G. v. John Christopher W., 73 A.D.3d 658, 658, 901 N.Y.S.2d 275 [1st Dept. 2010]).  The child has thrived in Florida, where he has progressed in therapy, succeeded academically, and developed close relationships with his maternal relatives.  Furthermore, the child has a closer relationship with his mother, who has always been the primary caregiver, and has provided a consistent and stable home environment for him (see Matter of Ramon R. v. Carmen L., 188 A.D.3d 545, 545, 132 N.Y.S.3d 613 [1st Dept. 2020]).

Although the father has not actively or consistently sought to maintain contact with the child, the court provided for visitation, which will permit the father and child to continue to have a relationship (see Matter of Christopher E.C. v. Ivana K.S., 143 A.D.3d 420, 421, 38 N.Y.S.3d 181 [1st Dept. 2016]).  Under these circumstances, returning the child to New York would not serve his bests interests (see e.g. Ousmane D. v. Halimatou B., 150 A.D.3d 509, 510, 54 N.Y.S.3d 14 [1st Dept. 2017]).