JACOBSON v. JACOBSON (2023)

DECISION & ORDER

In an action for a divorce and ancillary relief, the defendant appeals from an order of the Supreme Court, Westchester County (Robert S. Ondrovic, J.), dated December 31, 2022.  The order, insofar as appealed from, without a hearing, denied that branch of the defendant's motion which was, in effect, to modify a so-ordered stipulation dated February 17, 2022, so as to permit him to relocate with the parties’ children to Michigan.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff commenced this action for a divorce and ancillary relief in January 2021.  The parties entered into a stipulation dated February 17, 2022, which was so-ordered on February 27, 2022 (hereinafter the custody stipulation).  Pursuant to the custody stipulation, the parties agreed, inter alia, to share joint physical and legal custody of their two children.  The custody stipulation further indicated that the issue of the defendant's relocation was “off the table for the time being.”

In November 2022, the defendant moved, inter alia, in effect, to modify the custody stipulation so as to permit him to relocate to Michigan with the children, and in the event that the plaintiff did not relocate with them, to be awarded primary physical custody and final decision-making authority with respect to the children.  The Supreme Court, without a hearing, denied that branch of the defendant's motion.  The defendant appeals.

“In order to modify an existing court-ordered custody or parental access arrangement, there must be a showing that there has been a change in circumstances such that modification is required to protect the best interests of the child” (Matter of Morgan v. Eckles, 214 A.D.3d 983, 984, 185 N.Y.S.3d 790 [internal quotation marks omitted]).  “Similarly, a ‘parent seeking to relocate with a child bears the burden of establishing by a preponderance of the evidence that the proposed move would be in the child's best interests’ ” (Matter of Heppler v. Oelsner, 217 A.D.3d 767, 768, 191 N.Y.S.3d 445, quoting Matter of Banks v. DeLeon, 174 A.D.3d 598, 599, 101 N.Y.S.3d 885).

Here, the defendant failed to make a showing of a sufficient change in circumstances since the date on which he entered into the custody stipulation such that modification of the custody stipulation was necessary to protect the best interests of the children (see Sirabella v. Sirabella, 95 A.D.3d 1296, 1296–1297, 944 N.Y.S.2d 896).  Therefore, that branch of the defendant's motion which was, in effect, to modify the custody stipulation so as to permit him to relocate with the parties’ children to Michigan was properly denied, without a hearing (see Matter of Phillips v. Nabial, 154 A.D.3d 695, 696, 61 N.Y.S.3d 649;  McMahan v. McMahan, 102 A.D.3d 841, 842, 958 N.Y.S.2d 212).

In light of our determination, we need not reach the defendant's remaining contention.

DUFFY, J.P., CHRISTOPHER, FORD and TAYLOR, JJ., concur.