SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

752 

CAF 11-00204 

PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, GREEN, AND GORSKI, JJ. 

 

IN THE MATTER OF PAUL A. BUTLER, 

PETITIONER-RESPONDENT, 

V MEMORANDUM AND ORDER

MARGARET E. HESS, RESPONDENT-APPELLANT. 

LEONARD G. TILNEY, JR., LOCKPORT, FOR RESPONDENT-APPELLANT. 

MICHAEL J. STACHOWSKI, P.C., BUFFALO (MICHAEL J. STACHOWSKI OF

COUNSEL), FOR PETITIONER-RESPONDENT. 

ELISABETH M. COLUCCI, ATTORNEY FOR THE CHILD, BUFFALO, FOR KATHERINE

B. 

 

Appeal from an amended order of the Family Court, Erie County

(Craig D. Hannah, A.J.), entered April 20, 2010 in a proceeding

pursuant to Family Court Act article 6. The amended order, inter

alia, continued joint custody and prohibited respondent from

relocating from Western New York. 

It is hereby ORDERED that the amended order so appealed from is

unanimously reversed on the law without costs, respondent’s cross

petition is granted, and the matter is remitted to Family Court, Erie

County, for further proceedings in accordance with the following

Memorandum: Petitioner father commenced this proceeding seeking to

modify the parties’ existing custody arrangement, pursuant to which

the parties have joint custody with primary physical residence with

respondent mother and visitation with the father. The father sought

to prevent the mother from relocating with the child to Pennsylvania

and also sought sole custody of the child. The mother filed a cross

petition (improperly denominated “petition”) in which she sought

permission for the child to relocate with her to Pennsylvania, and she

now contends on appeal that Family Court erred in denying her cross

petition. We agree.

The record establishes that, pursuant to the existing

arrangement, the father has visitation with the child on alternate

weekends and Sunday overnights on the first Sunday of every month that

does not fall within his regular access time. The mother remarried in

December 2003, when the child was six years old, and the mother and

the child began living with the mother’s husband at that time. In

December 2006, the mother lost her job as a result of budget cutbacks

and, in July 2007, the mother’s husband lost his job after his
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CAF 11-00204 

position was eliminated. The mother’s husband accepted a job in

Pennsylvania in October 2007, which is the basis for the mother’s

cross petition seeking permission to relocate with the child to

Pennsylvania to join her husband. After a hearing, the court, inter

alia, denied the mother’s cross petition and directed her not to

relocate from Western New York, concluding that “there has been no

showing by [the m]other of a real need for relocation to ensure the

child[]’s best interests,” and that the mother had “failed to show

sufficient reasons to justify uprooting the child from the only area

that she has ever known, . . . when clearly the proposed relocation

would qualitatively affect her relation[ship] with the [f]ather.” 

We conclude that the mother established by the requisite

“preponderance of the evidence that [the] proposed relocation would

serve the child’s best interests” (Matter of Tropea v Tropea, 87 NY2d

727, 741; see Matter of Parish A. v Jamie T., 49 AD3d 1322, 1323;

Matter of Jennifer L.B. v Jared R.B., 32 AD3d 1174, 1175). While no

single factor is determinative, the Court of Appeals in Tropea

recognized that “economic necessity . . . may present a particularly

persuasive ground for permitting the proposed move” (id. at 739; see

Matter of Thomas v Thomas, 79 AD3d 1829). Here, the record reflects

that the court did not adequately, if at all, consider the financial

considerations underlying the requested relocation (cf. Thomas, 79

AD3d at 1830; see generally Parish A., 49 AD3d at 1323-1324). It is

undisputed that the mother requested permission to relocate because

she and her husband lost their jobs within a relatively short period

of time. The mother’s husband testified that both his health

insurance, which also covered the mother and the child, and his

severance pay ran out in August 2007. After the mother’s husband lost

his job, he and the mother depleted their savings and their house was

placed into foreclosure. The mother and her husband testified that

they unsuccessfully attempted to locate jobs in Western New York and

that the mother’s husband accepted the job in Pennsylvania out of

financial necessity. 

Here, the court based its determination primarily on its

conclusion that the relocation would “qualitatively affect” the

child’s relationship with the father. That was error, however,

because “the need to ‘give appropriate weight to . . . the feasibility

of preserving the relationship between the . . . parent [without

primary physical custody] and [the] child through suitable visitation

arrangements’ does not take precedence over the need to give

appropriate weight to the economic necessity for the relocation”

(Matter of Cynthia L.C. v James L.S., 30 AD3d 1085, 1086, quoting

Tropea, 87 NY2d at 740-741). In any event, the record establishes

that the proposed relocation would not have a substantial impact on

the visitation schedule. The mother and the husband testified that

they would transport the child to and from Pennsylvania every other

weekend, and they offered to pay for a hotel for the father in

Pennsylvania on his off-weekends so that he could exercise additional

access with the child. The mother further testified that the holiday

access schedule would remain the same because she and her husband

would be returning to Western New York at those times to visit with

their respective families, who reside there. In addition, the
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CAF 11-00204 

mother’s husband purchased video conferencing equipment for his

household and the father’s household to enable the father and the

child to communicate during the week and on the father’s off-weekends. 

Thus, the mother established “the feasibility of preserving the

relationship between the [father] and child through suitable

visitation arrangements” (Tropea, 87 NY2d at 741; cf. Matter of Webb v

Aaron, 79 AD3d 1761, 1761-1762).

We therefore reverse the amended order and grant the mother’s

cross petition, and we remit the matter to Family Court to fashion an

appropriate visitation schedule. In light of our determination, there

is no need to address the mother’s further contention with respect to

the court’s sua sponte award of additional visitation to the father.

Entered: June 17, 2011 Patricia L. Morgan

Clerk of the Court