Sheridan v. SheridanSheridan v. Sheridan
Aрpeal from an order of the Family Court of Rensselaer County (Tobin, J.), entered March 5, 1993, which, inter alia, denied petitioner’s application, in a proceeding pursuant to Family Court Act article 6, for custody of the parties’ child.
The sole issue before this Court is whether Family Court аbused its discretion by determining that extraordinary circumstances existed sufficient to grant custody of the parties’ child to respondent and permit her relocation to Puerto Rico.
The parties were married in December 1989 and had always resided in New York during their marriage. They have one child, Evan, born in July 1990. Respondent resided in New York from three months of age until her relocation to Puerto Rico during the term of the marriagе. The only exception to this residency was one year of undergraduate study in Puerto Rico.
After their marriage, the parties resided in the City of Glens Falls, Warren County. Petitioner was employed by an architectural firm and respondent remained at home to care for their son.
In Junе 1991, after petitioner was laid off, the parties moved in with petitioner’s brother, Timothy, in the City of Rensselaer, Rensselaer County. It was uncontested that Timothy has suffered mental illness for many years, is treated with tranquilizers and has been hospitalized on numerous occasions. Petitioner admittеd that Timothy’s apartment was
In August 1991, respondent left New York and took Evan to Puerto Rico with her. She testified that she "escaped” to Puerto Rico in desperation due to her inability to acquire a safe environment in New York and the necessary medical care for her sоn. Because her mother and father both resided in Puerto Rico, respondent contended that she needed to live there in order to rеceive the emotional and financial support of her family.
In this custody proceeding challenging respondent’s relocation, rеspondent contended that petitioner abused alcohol and marihuana, that she was the victim of continued domestic violence and that she had entered a domestic violence shelter on one occasion. One expert forensic evaluator, a mеntal health consultant, opined that respondent was fit to have custody and that petitioner should be afforded liberal visitation. This expert further opined that petitioner’s violence toward respondent may well have been a result of an alcohol problem. A certified alcohol counselor conducted an alcohol evaluation and diagnosed petitioner as alcohol dependent-provisional, subject to further evaluation which petitioner chose not to complete.
Petitioner denied going to bars on а regular basis, denied that he had an alcohol problem and denied that he had smoked marihuana since his college years. With regard tо allegations of domestic violence, he admitted to striking respondent on only one occasion. In the context of forensic еxaminations, petitioner admitted that it would be best for respondent to have custody but that the parties should remain in New York or within a reasonable geographic location so that the father/son relationship could be fostered.
At the time of the fact-finding hearing, petitioner was unemployed and receiving approximately $256 weekly in unemployment compensation. If granted custody, petitioner testified that he would support his son through food stamps and Medicaid in addition to his unemployment allowance. Respondent testified that she was employed in Puerto Rico as a teacher earning approximately $1,000 per month and that she resided in a home owned by her father frеe of charge. In support of her contention that exceptional circumstances existed to cause Family Court to grant her custody and permit her to reside in Puerto Rico, respondent testified that she was
After a five-day hearing, the Law Guardian recommended joint custody with physical custody to respondent provided that she returned with the child to New York or to a contiguous State. Family Court found exceptional circumstances to exist which justified respondent’s departure to Puerto Rico and determined that because respondent offered a more stable, nurturing environment, she should have sole custody of the сhild.
In geographic relocation cases where the relocation will substantially affect the visitation rights of the noncustodial parеnt, a presumption arises that " 'such relocation is not in the child’s best interest’ ” (Matter of Atkinson v Atkinson,
After determining that the move to Puerto Rico would deprive petitioner, the noncustodial parent, of regular and meaningful access and that extraordinary circumstances exist to permit such relocation, Family Court correctly determined that relocation was in the child’s best interest (see, Matter of Atkinson v Atkinson, supra; Matter of Lake v Lake, supra). Noting that Family Court’s determination should not be disturbed unless it is not supported by any fair interpretation of the evidence (see, Matter of Bogert v Rickard,
Cardona, P. J., White, Casey and Weiss, JJ., concur. Ordered that the order is affirmed, without costs.