State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: January 8, 2015 515664 

______________________________________

In the Matter of JULIE E.,

Appellant,

v

MEMORANDUM AND ORDER

DAVID E.,

Respondent.

(And Three Other Related Proceedings.)

______________________________________

Calendar Date: November 19, 2014

Before: Lahtinen, J.P., Garry, Rose and Devine, JJ.

__________

Douglas Walter Drazen, Binghamton, for appellant.

Norbert Higgins, Binghamton, for respondent.

Alena E. Van Tull, Binghamton, attorney for the children.

__________

Garry, J.

Appeal from an order of the Family Court of Broome County

(Charnetsky, J.), entered October 10, 2012, which, among other

things, dismissed petitioner's application, in four proceedings

pursuant to Family Ct Act articles 5, 6 and 8, for permission to

relocate with the parties' children.

Petitioner (hereinafter the mother) has a daughter and a

son (born respectively in 2007 and 2004). Respondent

(hereinafter the father) is the daughter's biological father, and

he shares joint custody of both children with the mother pursuant

to a 2010 order; the children's primary residence is with the

mother. In December 2011, the mother commenced the first of
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these proceedings by filing a family offense petition. The

father then filed a petition for modification of custody and a

petition for modification of visitation, and the mother crosspetitioned for leave to relocate with the children to Texas. 

Following a fact-finding hearing and an interview with the

children, Family Court dismissed the relocation and modification

petitions, and the remaining petitions were dismissed without

prejudice. The mother appeals arguing that the court erred in

dismissing her relocation petition.

As the mother contends, Family Court applied the incorrect

standard in dismissing the relocation petition on the ground that

the mother had failed to show a sufficient change in

circumstances to warrant modification. No change in

circumstances must be established to support a relocation

petition, as the planned move itself is accepted as such (see

Matter of Adams v Bracci, 91 AD3d 1046, 1046-1047 [2012], lv

denied 18 NY3d 809 [2012]; see also Lauzonis v Lauzonis, 120 AD3d

922, 923 [2014]). Instead, the parent who wishes to relocate

bears the burden of establishing that the proposed move is in the

best interests of the children, a determination based upon such

factors as the parents' reasons for seeking or opposing

relocation, the quality of the children's relationships with each

parent, the feasibility of developing a visitation schedule that

will permit the children to retain meaningful relationships with

the parent who does not move, the degree to which the move may

offer economic, emotional and educational benefits for the

relocating parent and the children, and the effect of the

relocation on extended family relationships (see Matter of Tropea

v Tropea, 87 NY2d 727, 740 [1996]; Matter of Norback v Norback,

114 AD3d 1036, 1036-1037 [2014]; Matter of Cole v Reynolds, 110

AD3d 1273, 1273-1274 [2013]). Although that analysis was not

conducted here, this Court's authority is as broad as that of

Family Court, and the record is sufficiently complete to permit

us to make the relocation determination based upon our

independent review (see Ostrander v McCain, 68 AD3d 1480, 1483

[2009]; Matter of Valenti v Valenti, 57 AD3d 1131, 1132 [2008],

lv denied 12 NY3d 703 [2009]). 

The mother testified that she wished to relocate to benefit

from the economic and emotional support of her father
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(hereinafter the grandfather) and other family members who reside

in Texas. She stated that she worked part time in New York as a

personal care aide with variable wages but, in Texas, she would

be able to work full time in a family storage business, earning a

salary of approximately $28,000, which would permit her to

discontinue receiving public assistance and residing in public

housing, as she does in New York, and to forgo the father's child

support obligation. In her later testimony the mother qualified

this claim, stating that her wages might be only $10 per hour,

that she was not sure what her salary would be, and that "[w]e

really haven't talked about that." The grandfather and the

mother's sister confirmed that a job was available for the mother

in the family business, as well as a home that the mother and

children would share with the mother's sister. The grandfather

further testified that he would be able to assist the mother, who

has a GED, in obtaining a college education if she moved, but

failed to explain why any such assistance would not be available

if she remained in New York. As for the children's education,

the mother identified the schools that they would attend in Texas

and stated that she was pleased with them, but offered no

evidence comparing them to the children's New York schools or

indicating that better educational opportunities were available

in Texas.

The father opposed the mother's relocation request because

of the detrimental impact such a move would have on his contact

and relationship with the children. The father testified that,

pursuant to the current order, he spends Tuesday and Thursday

evenings with the children each week and has an overnight visit

every weekend. Although the mother testified that the father

often missed these visits or left the children with the paternal

grandmother, the father and grandmother disputed this claim,

testifying that he had missed only a few recent visits, partly as

the result of a serious illness, and that he was always present

when the children visited the grandmother during his visitation

periods. The mother testified that the father would be free to

visit the children in Texas following the move and could maintain

telephone and Skype contact with them, but that she would be

reluctant to permit the children to return to New York for visits

with him. The father, however, testified that financial

obstacles would make it difficult for him to travel to Texas.
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 The testimony established that a move would permit the

children to establish better relationships with extended family

members in Texas, with whom their contact has primarily been

limited to telephone or Skype, but would simultaneously limit or

destroy their opportunities for contact with paternal relatives

with whom they presently enjoy well-established relationships. 

In particular, the paternal grandmother has been closely involved

with the children throughout their lives. She testified that the

mother, father and children resided with her or near her before

the parents separated and that she presently resides next door to

the father and sees the children frequently. She further

testified that several other paternal relatives live nearby and

that she has maintained a positive relationship with the mother,

hosting informal visits with the mother and children at the

grandmother's home and sometimes providing babysitting assistance

when the mother travels.

Family Court found that both parents are fit custodians who

enjoy positive relationships with the children, although not with

one another; the mother testified that there had been previous

incidents of domestic violence. Considering all of the relevant

factors and based primarily on the significant harmful impact

that a move would have upon the children's well-established

relationships with the father and his family in New York, we

conclude that the mother did not meet her burden of demonstrating

that relocation to Texas would be in their best interests (see

Matter of Cowper v Vasquez, 121 AD3d 1341, 1343 [2014]; Matter of

Jones v Soriano, 117 AD3d 1350, 1351-1352 [2014], lv denied 24

NY3d 901 [2014]; Rose v Buck, 103 AD3d 957, 960-961 [2013];

Matter of Munson v Fanning, 84 AD3d 1483, 1485 [2011]). 

As a final matter, we note that Family Court conducted what

was described as a "modified" Lincoln hearing, in which counsel

for both parents were permitted to be present during the court's

interview with the children. The transcript of the interview was

not sealed, and was included in full in the appellate record. 

Neither the presence of counsel other than the attorney for the

children during the interview nor the failure to seal the

transcript was proper. We reiterate that the right to

confidentiality during a Lincoln hearing belongs to the child and

is superior to the rights or preferences of the parents (see
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Matter of Lincoln v Lincoln, 24 NY2d 270, 271-272 [1969]; Matter

of Lawrence v Kowatch, 119 AD3d 1004, 1006 n 1 [2014]; Matter of

Susan LL. v Victor LL., 88 AD3d 1116, 1119 n 4 [2011]; Matter of

Spencer v Spencer, 85 AD3d 1244, 1246 [2011]; Matter of Verry v

Verry, 63 AD3d 1228, 1229 [2009], lv denied 13 NY3d 707 [2009];

Matter of Hrusovsky v Benjamin, 274 AD2d 674, 676 [2000]; Matter

of Sellen v Wright, 229 AD2d 680, 681-682 [1996]; see also Family

Ct Act § 664 [b]). A child who is explaining the reasons for his

or her preference in custody or visitation proceedings "should

not be placed in the position of having [his or her] relationship

with either parent further jeopardized by having to publicly

relate [his or her] difficulties with them or be required to

openly choose between them" (Matter of Lincoln v Lincoln, 24 NY2d

at 272; accord Matter of Casarotti v Casarotti, 107 AD3d 1336,

1338-1339 [2013], lv denied 22 NY3d 852 [2013]; see Matter of

Sellen v Wright, 229 AD2d at 681-682). We address this issue

recognizing that, in the course of practice, confusion may have

resulted from the different procedure followed during Family Ct

Act article 10 proceedings, in which the presence of the parties'

counsel during an in camera interview with a child may be

permissible due to the fundamental right of litigants in such

proceedings to confront their accusers. Although these

interviews have sometimes been inaccurately referred to as

Lincoln hearings, they are conducted for entirely different

purposes than the confidential interviews conducted during

custody and visitation proceedings (see Matter of Justin CC.

[Tina CC.], 77 AD3d 207, 210-211 [2010]). For the court to

fulfill its primary responsibility of protecting the welfare and

interests of a child in the context of a Family Ct Act article 6

proceeding, protecting the child's right to confidentiality

remains a paramount obligation (see Matter of Lincoln v Lincoln,

24 NY2d at 271-272). 

Lahtinen, J.P., Rose and Devine, JJ., concur.
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ORDERED that the order is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court