SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

363 

CAF 16-00399 

PRESENT: CENTRA, J.P., PERADOTTO, DEJOSEPH, CURRAN, AND SCUDDER, JJ. 

 

IN THE MATTER OF RYAN J. FISHER, 

PETITIONER-RESPONDENT, 

V MEMORANDUM AND ORDER

LESLIE A. FISHER, RESPONDENT-APPELLANT. 

--------------------------------------- 

IN THE MATTER OF LESLIE A. FISHER, 

PETITIONER-APPELLANT,

V

 

RYAN J. FISHER, RESPONDENT-RESPONDENT. 

MICHAEL STEINBERG, ROCHESTER, FOR RESPONDENT-APPELLANT AND PETITIONERAPPELLANT. 

NORMAN P. EFFMAN, PUBLIC DEFENDER, WARSAW (ADAM W. KOCH OF COUNSEL),

FOR PETITIONER-RESPONDENT AND RESPONDENT-RESPONDENT.

MARY ANNE CONNELL, ATTORNEY FOR THE CHILD, BUFFALO. 

 

Appeal from an order of the Family Court, Wyoming County

(Terrence M. Parker, A.J.), entered February 22, 2016 in proceedings

pursuant to Family Court Act article 6. The order granted the parties

joint custody and directed that the residence of the parties’ child

shall be in New York. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: On appeal from an order that, inter alia, awarded

the parties joint custody of their child and ordered that the child’s

residence remain in New York, respondent-petitioner mother contends

that Family Court erred in failing to award her primary physical

residence with permission to relocate to Texas. We affirm.

“Inasmuch as this case involves an initial custody determination,

‘it cannot properly be characterized as a relocation case to which the

application of the factors set forth in Matter of Tropea v Tropea (87

NY2d 727, 740-741 [1996]) need be strictly applied’ ” (Forrestel v

Forrestel, 125 AD3d 1299, 1299, lv denied 25 NY3d 904). “ ‘Although a

court may consider the effect of a parent’s [proposed] relocation as

part of a best interests analysis, relocation is but one factor among
-2- 363 

CAF 16-00399 

many in its custody determination’ ” (id. at 1299-1300). We reject

the mother’s contention that Family Court required her to establish by

a preponderance of the evidence that her proposed relocation to Texas

was in the best interests of the child, thereby imposing an improper

burden of proof (cf. Matter of Saperston v Holdaway, 93 AD3d 1271,

1272, appeal dismissed 19 NY3d 887, 20 NY3d 1052). Rather, we

conclude that the court, in evaluating the mother’s proposed

relocation as part of the best interests analysis, properly weighed

that factor against the mother upon determining that the child’s

relationship with petitioner-respondent father would be adversely

affected by the proposed relocation because of the distance between

western New York and Texas (see Forrestel, 125 AD3d at 1300). 

Contrary to the mother’s further contention, upon weighing the other

relevant factors (see Fox v Fox, 177 AD2d 209, 210), we conclude that

the court’s determination that the child’s best interests would be

served by awarding joint custody to the parties with continued

residence in New York is supported by a sound and substantial basis in

the record and should not be disturbed (see Forrestel, 125 AD3d at

1299).

Entered: March 31, 2017 Frances E. Cafarell

Clerk of the Court