Appeal from an order of the Family Court of Otsego County (Burns, J.), entered March 2, 2007, which partially granted petitioner’s application, in a proceeding pursuant to Family Ct Act article 6, to modify a prior order of custody.
The parties are the divorced parents of two children (a daughter born in 1994 and a son born in 1998). Under the terms of their separation agreement, which was incorporated but not merged into the 2003 judgment of divorce, respondent (hereinafter the mother) received physical custody of the children and was permitted to relocate to Virginia. Visitation with petitioner (hereinafter the father) included one weekend a month, half the children’s Christmas and summer vacations, and alternating Thanksgiving and spring vacations. In December 2004, the mother married a member of the United States Army, who was transferred from Virginia to Alaska in December 2005, and the mother and the children accompanied him without first petitioning for permission for the children to move. In May 2006, the father, after not having visitation with the children since they moved to Alaska,
Initially, we note that there is no dispute that the mother’s move from Virginia to Alaska constituted a substantial change in circumstances (see Matter of Groover v Potter, 17 AD3d 718, 719 [2005]; see also Matter of Gutiy v Gutiy, 40 AD3d 1155, 1156 [2007]) and, accordingly, resolution of the petition to modify the existing custody order turned on whether such a modification was in the best interests of the children (see Matter of Brady v Schermerhorn, 25 AD3d 1037, 1038 [2006]; Matter of Meyer v Lerche, 24 AD3d 976, 976-977 [2005]; Matter of
At the hearing, the father appeared in person, the mother testified via telephone and the children were neither present nor interviewed in camera by Family Court. Family Court made several significant factual determinations which are not supported by the record. For example, the court stated that the mother’s relocation to Alaska occurred without the father being provided any prior notice. The mother testified that she gave notice almost a year in advance of the upcoming move that was being dictated by the military, and the father acknowledged knowing at least as early as the month prior to the move. While the mother clearly should have petitioned for permission to relocate, nevertheless this was not a case of a parent secretly moving with children to another part of the country (cf. Matter of Meier v Key-Meier, 36 AD3d 1001, 1002 [2007]). Family Court further found that the mother and her current husband “chose” to move to Alaska; whereas the proof in the record establishes that the choice was made by the Army, and the mother’s husband is seeking to be transferred back to the eastern part of the United States (see generally Matter of Church v ChurchCorbett, 214 AD2d 877 [1995]).
The most significant conclusion that is not supported by this record is Family Court’s determination that the 13-year-old daughter “clearly expressed her desire to live with [the father].” No Lincoln hearing was conducted and the child’s Law Guardian advised the court that the child was “very confused.” At one point (apparently within two months of hearing), the child had
Even with these unsupported factual conclusions removed from consideration, however, the issue remains a difficult one. The mother showed less than acceptable efforts in encouraging the children’s relationship with the father. The parties’ daughter has had some differences with her stepfather’s strict approach to discipline and she misses her extended family, which reside near the father. The mother has, however, been the primary caregiver for the child, she encouraged her daughter’s participation in school activities, sought counseling for her when necessary, and provided an adequate home. Moreover, it appears from the record that keeping these siblings together is in the best interests of the children at the current time (see Matter of Robert GG. v Kathleen HH., 273 AD2d 713, 714 [2000]). The father had an apparent substance abuse problem and even lost his nursing license in Connecticut in 2006 as a result of confiscating pain medicine prescribed for his elderly patients for his personal use. He admitted to being depressed and suicidal. The father had violated the support order regarding the children. In the months prior to the hearing, the father started to turn his life around and there is potential for a stable future. Yet, upon exercising our broad powers to review the record (see Matter of Banks v Banks, 285 AD2d 686, 688 [2001]), we conclude that the physical custody of the parties’ daughter should not have been changed under the prevailing circumstances.
Family Court’s November 2006 order will control regarding visitation for the summer of 2007, and we remit the matter to Family Court to establish visitation to take effect after the summer of 2007 (see id.). We note that fashioning appropriate visitation for the daughter may also affect the prior visitation schedule established for the son.
. The mother asserted that the father was offered visitation during early 2006, but he declined since he had planned a trip to Mexico.
. This Court granted a stay pending appeal.
