IN RE: BROOKE PP. (2025)

MEMORANDUM AND ORDER

Appeal from an order of the Family Court of Tioga County (Adam Schumacher, J.), entered August 2, 2024, which granted petitioner's application, in a proceeding pursuant to Family Ct Act article 6, to modify a prior order of custody.

In March 2023, petitioner (hereinafter the mother) and respondent (hereinafter the father) settled matters of custody and parenting time relating to their mutual child (born in 2020).  Pursuant to that initial custody order, which was entered in Otsego County Family Court (Lambert, J.), the parties shared legal custody, and the father had three days of parenting time with the child each week;  although not expressly stated in the order, the mother had the remaining four days of parenting time each week.  That order further specified a custodial exchange location that was much closer to the father's residence than it was to the mother's.¹  The mother commenced the instant proceeding in Tioga County Family Court in January 2024, alleging that she had obtained new employment and that her work schedule required modification of the prior order.  Following a fact-finding hearing, Family Court (Schumacher, J.) found that the mother had demonstrated a change in circumstances and that the best interests of the child would be served by modifying the times and locations of the custodial exchanges, while keeping the amount of parenting time each parent had intact.  As such, the court issued an order continuing joint legal custody, shifting the start and end of the father's parenting time to accommodate the mother's work schedule and specifying two new custodial exchange locations.  The father appeals.²

We disagree with the father's contention that, as the initial custody determination was issued in Otsego County, Family Court erred in declining to transfer these proceedings there.  Rather, as the mother had resided in Tioga County since the initial custody order, venue in that county was proper (see Family Ct Act § 171;  Matter of Tamara XX. v. William YY., 199 A.D.3d 1244, 1248–1249, 159 N.Y.S.3d 195 [3d Dept. 2021]).  The issue “of whether to grant or deny [an] application for a change in venue [thus] fell squarely within Family Court's discretion” (Matter of Carter v. Van Zile, 162 A.D.3d 1127, 1128, 78 N.Y.S.3d 484 [3d Dept. 2018];  see Family Ct Act § 174).  As the father failed to establish good cause for the transfer, Family Court did not abuse its discretion in denying his motion (see Matter of Carter v. Van Zile, 162 A.D.3d at 1128–1129, 78 N.Y.S.3d 484;  compare Matter of Julie G. v. Yu–Jen G., 81 A.D.3d 1079, 1080, 917 N.Y.S.2d 355 [3d Dept. 2011];  Matter of Henry v. Skratt, 11 A.D.3d 691, 692, 784 N.Y.S.2d 126 [2d Dept. 2004]).

Next, as the father concedes, the mother's change in employment constituted a requisite change in circumstances, as her work schedule interfered with the custodial exchange schedule (see Matter of Jacob L. v. Heather L., 228 A.D.3d 1191, 1193–1194, 214 N.Y.S.3d 501 [3d Dept. 2024];  Matter of Lundgren v. Jaeger, 162 A.D.3d 1427, 1428–1429, 81 N.Y.S.3d 250 [3d Dept. 2018]).  With this threshold inquiry satisfied, “Family Court was tasked with fashioning a custodial arrangement that would serve the child's best interests” (Matter of Samantha E. v. Nicholas F., 233 A.D.3d 1295, 1296, 224 N.Y.S.3d 662 [3d Dept. 2024]).  “In making a best interests determination, Family Court must consider a variety of factors, including the quality of the parents’ respective home environments, the need for stability in the child's life, each parent's willingness to promote a positive relationship between the child and the other parent and each parent's past performance, relative fitness and ability to provide for the child's intellectual and emotional development and overall well-being” (Matter of Laura E. v. John D., 216 A.D.3d 1274, 1275, 188 N.Y.S.3d 794 [3d Dept. 2023] [internal quotation marks and citations omitted];  see Matter of Mary N. v. Scott M., 218 A.D.3d 890, 892, 193 N.Y.S.3d 344 [3d Dept. 2023]).  “Given the superior position of Family Court to observe and evaluate the witnesses’ testimony, its factual findings and credibility assessments are to be accorded great deference, and we will not disturb its custodial determination if supported by a sound and substantial basis in the record” (Matter of Giuseppe V. v. Tiffany U., 224 A.D.3d 1122, 1124, 205 N.Y.S.3d 776 [3d Dept. 2024] [internal quotation marks and citations omitted];  see Matter of Steven OO. v. Amber PP., 227 A.D.3d 1154, 1156, 211 N.Y.S.3d 546 [3d Dept. 2024];  Matter of Jennifer D. v. Jeremy E., 172 A.D.3d 1556, 1557, 100 N.Y.S.3d 404 [3d Dept. 2019]).

Here, the record is clear that both the mother and the father are loving, fit parents.  Nevertheless, Family Court's determination to grant the mother primary residential custody is supported by the record.  Since the prior order, the mother has been the child's primary caretaker, as the child spends a majority of the week with the mother, and the mother has been responsible for the child's medical and dental needs and has enrolled the child in gymnastics and nursery school (see Matter of Christopher L. v. Paula L., 212 A.D.3d 1060, 1062, 181 N.Y.S.3d 778 [3d Dept. 2023];  Matter of Gentile v. Warner, 140 A.D.3d 1481, 1482–1483, 34 N.Y.S.3d 520 [3d Dept. 2016]).  The child also shares a close bond with her younger maternal half-sibling, who resides full time with the mother and her husband (see Matter of Samantha E. v. Nicholas F., 233 A.D.3d at 1298, 224 N.Y.S.3d 662;  Matter of James GG. v. Bamby II., 85 A.D.3d 1227, 1228, 924 N.Y.S.2d 615 [3d Dept. 2011]).

We also decline to disturb Family Court's designation of two new custodial exchange locations, both of which remained closer to the father's residence.  At the hearing, the mother explained that she sought to modify the exchange locations due to the significant burden caused by undertaking the bulk of the transportation.  Indeed, pursuant to the location specified in the prior order, the mother was required to drive approximately an hour each way, while the father's drive was approximately 20 minutes.  Although the father testified that any modification to the exchange location would cause him to suffer financial difficulty, the court determined that his opposition stemmed from resentment over the mother's relocation from Otsego County during the pendency of the prior proceedings.  Deferring to such credibility determinations, we discern no abuse of discretion in Family Court selecting two new exchange locations, particularly where they continue to be closer to the father's residence (see Matter of Lundgren v. Jaeger, 162 A.D.3d at 1429–1430, 81 N.Y.S.3d 250;  see also Matter of Schneider v. Lascher, 72 A.D.3d 1417, 1419, 899 N.Y.S.2d 479 [3d Dept. 2010], lv denied 15 N.Y.3d 708, 2010 WL 3632596 [2010];  compare Matter of David V. v. Roseline W., 217 A.D.3d 1112, 1115, 191 N.Y.S.3d 504 [3d Dept. 2023], lv denied 40 N.Y.3d 905, 2023 WL 6885682 [2023]).  As the order on appeal is supported by a sound and substantial basis in the record, we find no basis upon which to disturb it.

The father's remaining contentions, to the extent not expressly addressed herein, have been reviewed and found to be lacking merit.

ORDERED that the order is affirmed, without costs.

FOOTNOTES

1.   The parties both resided in Otsego County, but the mother relocated to Tioga County during the pendency of the prior proceedings.

2.   The mother and the attorney for the child both argue in favor of affirmance.

Clark, J.P.

Aarons, Pritzker, Reynolds Fitzgerald and Powers, JJ., concur.