IN RE: Joshua DAVIS (2025)

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Nassau County (Ayesha K. Brantley, J.), dated December 12, 2023.  The order, upon a decision of the same court also dated December 12, 2023, made after a hearing, granted the father's petition to modify an order of the same court dated April 28, 2021, entered on the consent of the parties, so as to award him residential custody of the parties’ child, awarded him final decision-making authority, and, in effect, denied the mother's petition for permission to relocate with the child to New York City.

ORDERED that the order dated December 12, 2023, is affirmed, without costs or disbursements.

The parties have one child together, who was born in 2018.  Pursuant to an order dated April 28, 2021, which was entered on the consent of the parties, the parties were awarded joint legal custody of the child, the mother was awarded residential custody of the child, and the mother was not permitted to relocate with the child more than 10 miles from the father's residence.  In April 2023, the father filed a petition to modify the order so as to award him residential custody of the child.  In June 2023, the mother filed a petition for permission to relocate with the child to New York City. Following a hearing, the Family Court granted the father's petition, awarded him residential custody of the child and final decision-making authority and, in effect, denied the mother's petition for permission to relocate with the child to New York City. The mother appeals.

“ ‘In order to modify an existing custody arrangement, there must be a showing of a subsequent change in circumstances such that modification is required to protect the best interests of the child’ ” (Matter of Jones v. Jones, 231 A.D.3d 829, 830, 219 N.Y.S.3d 705, quoting Matter of Marotta v. Marotta, 218 A.D.3d 468, 470, 193 N.Y.S.3d 134).  “ ‘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 Brown v. McGhee, 227 A.D.3d 983, 983, 212 N.Y.S.3d 181, quoting Jacobson v. Jacobson, 222 A.D.3d 847, 848, 199 N.Y.S.3d 701).  “The paramount concern when making a determination regarding the modification of an existing custody or parental access arrangement ‘is the best interests of the child under the totality of the circumstances’ ” (Matter of Rossi v. O'Leary, 231 A.D.3d 835, 836, 220 N.Y.S.3d 132, quoting Matter of Martinez v. Gaddy, 223 A.D.3d 816, 817, 204 N.Y.S.3d 163).  “ ‘Since the Family Court's determination with respect to custody and [parental access] depends to a great extent upon its assessment of the credibility of the witnesses and upon the character, temperament, and sincerity of the parties, deference is accorded to its findings in this regard, and such findings will not be disturbed unless they lack a sound and substantial basis in the record’ ” (Matter of Martinez v. Gaddy, 223 A.D.3d at 817, 204 N.Y.S.3d 163, quoting Matter of Gangi v. Sanfratello, 157 A.D.3d 677, 678, 66 N.Y.S.3d 622).

Here, contrary to the mother's contention, the Family Court's determination that there had been a change in circumstances requiring a transfer of residential custody and final decision-making authority to the father to ensure the best interests of the child has a sound and substantial basis in the record (see Matter of Heppler v. Oelsner, 217 A.D.3d 767, 769, 191 N.Y.S.3d 445;  Matter of Thomas v. Mobley, 206 A.D.3d 743, 745, 170 N.Y.S.3d 172).  The evidence demonstrated that both parents love the child and were able to provide for the child's needs, but the father could offer the child greater stability (see Matter of Vidal v. Taneja, 218 A.D.3d 594, 595, 193 N.Y.S.3d 167;  Matter of Clarke v. Wiltshire, 145 A.D.3d 776, 777, 43 N.Y.S.3d 445;  Matter of Quinones v. Quinones, 139 A.D.3d 1072, 1074, 32 N.Y.S.3d 607).  Furthermore, since the record establishes that the nature of the parties’ relationship effectively precluded joint decision-making, there is no basis to disturb the court's determination to award the father final decision-making authority (see Matter of Cornielle v. Rosado, 231 A.D.3d 824, 826, 220 N.Y.S.3d 763).

Accordingly, the Family Court properly awarded the father residential custody of the child and final decision-making authority and, in effect, denied the mother's petition.

CHAMBERS, J.P., FORD, TAYLOR and MCCORMACK, JJ., concur.