Petitioner-mother ("mother") seeks a modification (filed March 23, 2010) of the respondent-father's ("father") visitation in order to allow mother and the parties' son to relocate to the State of North Carolina with her current husband and their infant daughter. The father opposes the proposed move.

Father was convicted in the Penn Yan Village Court on or about June of 2005 of the class A misdemeanor of forcible touching the mother and was sentenced to a term of one year in the Yates County Jail. A stay away order of protection (now expired) was entered against the father in favor of the mother and a "refrain from" Order for the child was also entered.

This Court entered an order (V-00237-05) on September 15, 2005, based upon the stipulation of the parties granting the mother sole custody of the parties' child. The father was allowed to petition for visitation upon his release from incarceration. An order of protection (expired September 25, 2007) was also entered requiring the father to have no contact with the mother except for arranging visitation with the child. The father petitioned the Court and the order was modified (V-00237-05/07A) and entered December 11, 2006, on consent of the parties, allowing the respondent visitation with the child "... to be supervised by personnel from the Child and [*2]Family Resources upon availability, which visitation shall be arranged upon the initiative of the petitioner-father upon reasonable frequency and for reasonable periods."

Subsequently, on October 15, 2007, the father again petitioned the Court and the parties stipulated to a modification of the visitation by order (V-00237-05/07B) entered October 17, 2007, whereupon sole custody of the child continued with the mother with visitation as follows:

"1) Two unsupervised one hour visits per week for a total of eight visits to be arranged by personnel from the Child and Family Resources Agency, with the father picking up and returning the child to the agency in Penn Yan, or as arranged by them, and such visits are to commence October 18, 2007, and

2) Commencing with the 9th visit, the father is to contact the petitioner's sister,

"JU", to make arrangements for days, times, and length of visits, which is understood that they generally will be longer than one hour, and the details of pick-up and return of the child after visitation. These contacts are only for the purpose of scheduling the visitations due to an Order of Protection entered by Justice "DMH" in the Village of Penn Yan, which is due to expire after September 19, 2008, and

3) All visitations shall occur in the Village of Penn Yan, and it is further

ORDERED, that neither party is to allow "JW" to have any contact with "S"..."

All other terms of the original custody order (V-00237-05) remained in effect including that the child could not be removed from the State of New York, except for temporary visitation periods without the consent of the Court or the written consent of the parties.

A plenary hearing was held on August 4 and September 9, 2010, at the conclusion of which the child's attorney gave her report followed by the closing arguments of counsel. The Court reserved decision and the case was marked submitted.

The Court having had the unique opportunity to closely observe the witnesses as to their responses, demeanor and credibility on the witness stand, and having heard the allegations and various proofs, and due deliberation having been had therein, and now after considering the proofs herein, statements of counsel and the report of the child's attorney I do hereby decide and find the essential facts and conclusions of law, which I deem established by the evidence as follows:

The Court takes judicial notice of prior proceedings regarding the parties and child including Docket No. NN-321-05.

Petitioner and Respondent are the natural parents of "S" ("child") age 7, DOB: October 11, 2002, who has lived continuously with the mother. The parties were never married and the mother is currently married to "RC" Mr. "C" and mother also have a daughter, "E" (age 1, DOB: December 14, 2008).

The mother and father lived together for approximately three to four years before he left the household when the child was approximately three years old.

Since on or about May 4, 2009, the respondent-father has been incarcerated in the Livingston County Correctional Facility, a medium security prison run by the New York State Department of Corrections, after his conviction for Criminally Negligent Homicide involving an incident having nothing to do with the mother or child herein. His maximum release date is May of 2012 [*3]although he is appealing his latest parole denial which, if successful, would give him a release date of May, 2011.

The father's parents are deceased. He has two other sons, ages 27 and 24 who live in Penn Yan. He also has four sisters and various nieces and nephews who live in the surrounding area. It appears that only his oldest son has seen the child very often.

The father was current on his child support obligations from the time he left the family household until the time he was sentenced to state prison.

The father has always known where the mother and the child live as he used to live in the same house. He states that he has mailed letters and "hanky"drawings he makes in prison to the child. He asserts that he believes that the mother doesn't give the letters to the child so he has sent them to his older son to deliver. However, no independent proof was presented that the mailings were kept from the child or that the father's oldest son in fact delivered them. The father said he sent one letter to the mother from prison wherein he apologized for his past behavior towards her and he still had feelings for her because of the fact that they have a child together.

Before his latest incarceration the father would visit with the child. They would visit other relatives but because his time was limited he would try to spend it all with the child.

The mother was the subject of a neglect proceeding in 2005 (NN-321-05) where the child was removed for a short period of time due to the fact that there were allegations that the father's nephew, age 14, was molesting the child and that the mother was having the nephew babysit for the child. The proof also showed that the nephew would babysit for both the mother and the father at times when they lived together. The child was soon returned to the mother under the supervision of the Department of Social Services and a refrain from order of protection (now expired) was entered.

The mother has lived in Penn Yan for six years. She owns her own home located at 107 Ogden Street. There is a mortgage and the house has not been listed for sale. It is a two-story house with three bedrooms and one bathroom. She lived there with the child and the father until he left and then for approximately three years with her current husband until he moved back to North Carolina in June of 2010 with their daughter. Mr. "C" took a job as a plumber's assistant for his brother. This location is approximately ten hours from Penn Yan, although there is a major airport nearby.

The mother filed this petition in March of 2010, three months before her husband went to North Carolina because she felt it was in the best interests of her entire family. She also has issues with the Penn Yan School District on its handling of her son's ADHD condition to wit: the school wants higher medications but the mother and her son's doctor disagree. She also feels that the teachers were not patient with the child. It is noted that her son started third grade in Penn Yan on September 8th. The mother did not send the child with all the required supplies but will do so.

The mother made contacts in March of 2010 to the Pit County, North Carolina School District regarding the school situation and specifically the Belmore School in Greenville, North Carolina. She contacted that school because her husband's sister has a child that goes there.

There was some question as to whether or not the mother was diligent enough in obtaining certain services for the child from the Crestwood Children's Center including continuation of [*4]previous services. This was especially so from 2005-2008 when Crestwood lost contact with the mother or noted "no positive discharge", although this could have been attributable to transportation or pregnancy issues. However, the mother recently advised Crestwood, when discussing the restart of services, that an appointment probably wouldn't be necessary because she was looking to relocate.

The mother has contacted four places in North Carolina regarding counseling services questioning how they handled ADHD, the availability of counselors, if they were accepting patients, which they were.

Mother, a licensed certified nursing assistant (CNA) in New York State, stopped working at the Penn Yan Manor approximately one month ago because she decided to take a vacation. She claims she can return if she wished. She has a brother in Florida and a sister who lives in Penn Yan.

While in New York the mother and Mr. "C" wanted one person to raise the children while the other parent worked. However, "SO" would occasionally care for the child when the mother worked. The mother pointed out that if she lived in North Carolina and her husband worked, she might go back to college. This raises the issue of child care and is in contrast to her desire to have one parent remain at home.

The mother joined a church in North Carolina and likes it. There are camps and programs which the child likes as well. There are also various recreation areas nearby including baseball which the child enjoys.

As to working in North Carolina, she has no confirmed employment. The mother feels her New York license could be transferred easily by just taking a test as it is close to the New York State requirements. In fact she took a pre-test and scored a 95% without studying. All she needs to do is pay the $100.00 testing fee. The test is administered approximately once every two weeks.

The mother claims there are various job openings, including a number of available CNA positions. The wages are comparable to wit: approximately $10.75/hour plus $.50 more on the weekends in New York and $10.00 to $15.00/hour with someone with ten years of experience like her in North Carolina.

The mother feels that her husband has a better opportunity to make good money in North Carolina, as opposed to New York. In addition, child care expenses are higher in New York. That is why they chose to have the mother work because she had the better paying job and Mr. "C" would stay at home and care for the children.

The child has no blood relatives living in North Carolina except for his half-sister. While living in New York, the child has not seen his cousins that much, maybe one time a month. The father's family never came to see the child and his other children haven't seen the child much either except for "S" who would occasionally transport the child.

The mother indicated that the father never called or wrote the child while he was in prison although the father controverts this. The mother also wants the father to reach out and arrange visitation with the child rather than the child having to do so. The father has on two prior occasions petitioned the Court to modify his visitation schedule. He has not done so while in prison.

The mother indicated that if she were allowed to move to North Carolina the child could [*5]write or call the father weekly if there was availability to do so at the prison. Furthermore, once the father is released the mother would allow visits during summer breaks from school and school vacations. She would also arrange for the transportation. In addition, the mother has no problem that there would be overnights and visits if the father has a stable and safe environment including no use of drugs and alcohol. The father would also be free to visit the child in North Carolina.

Mr. "C" and the mother met on the internet. He came to Penn Yan and lived with the mother and child for approximately two years.

Mr. "C" is from North Carolina and returned to Greenville with the petitioner's and his daughter in June of 2010 because his family lives there and he got a job. Mr. "C", although not a licensed certified plumber, currently serves as a sight supervisor/project manager for his brother's plumbing business where he worked before. He has been in the plumbing business for approximately twenty years. He is paid $15.00 per hour for approximately 40 hours regular, plus overtime which amounts to take home pay of approximately $600 to $700 a week. He states there is work available year round.

He claims he could not find a plumbing job in New York so he returned to North Carolina. However, he only checked for work within the Village of Penn Yan limits. He never looked elsewhere because they only had one vehicle and the mother needed it. When he lived in Penn Yan the mother paid all of Mr. "C"'s bills including his child support for another child.

Basically he stayed home and cared for the child and their own daughter since petitioner had the full time job. Mr. "C" would help both children with sports, meals, bathing and school work. He also pointed out that he would be present when respondent exercised his visitation rights with the child.

After the petition was filed in March, 2010, Mr. "C" moved to North Carolina in June of 2010. He was aware at the time that the mother needed permission to move out of state with the child.

Mr. "C" has rented a three bedroom, two bathroom mobile home in Greenville, North Carolina. He signed a lease/purchase agreement in July of 2010 after the subject petition was filed. The rent is $425.00 per month plus utilities of approximately $300.00 per month. He entered into the lease agreement because he didn't want to loose the property. His sister was the previous owner of the property.

"SO" testified that she knows both of the parties. She indicated that she cared for the child when he was in her foster care for approximately two to two and half months.

She had the child a lot at night when the mother was working and sometimes four to five days per week. She also testified that the father made most, if not all, of his visits with the child. Ms. "O" did some transportation for the father/son visitation. She would be willing to facilitate visitation with the father after he gets out of prison. And if the mother were allowed to leave the State of New York, she would provide her home for the father to visit with the child if the later travels to New York.

The Court places the burden of proof on the parent seeking relocation. In this respect the party seeking to modify the custody visitation order must aver a change in circumstances demonstrating a need for modification to ensure the child's best interests. See, Matter of Perry v. [*6]Perry, 52AD3d 906 (3rd Dept 2008), lv. den 11 NY3d 707 (2008). Visitation with a non-custodial parent is presumed to be in the child's best interests even when the parent is incarcerated. Matter of Flood v. Flood, 63 AD3d 1197 (3rd Dept 2009). Here, even though the mother has sole custody she must show that relocation serves the child's best interest, Brown vs. McGuire, 245 AD2d 895, (3rd Dept 1997) and not what's in the mother's or entire family's best interest. [See Tropea v. Tropea, 87 NY2d 727, 739 (1996)]. And just because the mother has sole custody does not excuse this burden. Chambers v. Renaud, 72 AD3d 1433 (3rd Dept 2010).

Under Tropea v. Tropea, supra, the Court is required to give appropriate weight to all of the factors that may be relevant to the determination by stating:

"...We hold that, in all cases, the Courts should be free to consider and give appropriate weight to all of the factors that may be relevant to the determination. These factors include, but are certainly not limited to each parent's reasons for seeking or opposing the move. The quality of the relationships between the child and the custodial and non-custodial parents, the impact of the move on the quantity and quality of the child's future contact with the non-custodial parent, the degree to which the custodial parent's and child's life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationships between the non-custodial parent and child through suitable visitation arrangements..." pp. 740-741

The use of a "fresh start" should be combined with other factors when proposing relocation, such as lower cost housing, free child care, which may present a more compelling scenario as contrasted with a move based solely on a "fresh start".

The Court in Stone v. Wyant, 8 AD3d 1046, (4th Dept 2004) held:

"Tropea provides that each relocation request must be considered on its own merits with due consideration of all of the relevant facts and circumstances and with predominant emphasis being placed on what outcome is most likely to serve the best interest of the child (Id. at 739). Although Tropea emphasizes that "no single factor should be treated as dispositive or given such disapprotionate weight as to determine the outcome (Id. at 738), it indicates that economic necessity ... may present a particularly persuasive ground for permitting the proposed move". (Id. at 739).

Applying the Tropea analysis to the case at bar, the Court finds that neither parent has improper motives for requesting or opposing the move. Indeed, both parents recognize the importance of the other parent in the child's life. However, the Court is concerned that the mother's husband moved to North Carolina with their daughter, found plumbing work with his brother and living quarters only three months after the mother filed her petition, knowing full well that his wife could not leave New York with the child without agreement or the Court's permission. While at the same time he only looked for plumbing work within the Village limits of Penn Yan. In addition, the mother owns her own home in Yates County which has a mortgage and is not currently listed for sale. The mother also had a full time job in Yates County as a CNA until recently when she quit to take a vacation. She may feel confident that she can get similar employment in North Carolina but she has not taken the required test or presented any proof that someone will hire her. [*7]

Equally troubling is the mother's opinion that the child's current school system is not medicating the child properly however she has not worked with Crestwood Childrens Center including recently declining services stating that she probably would be moving out of the area.

The father on the other hand is currently in prison with a maximum release date of May, 2012. The proof showed that he was current on his child support and exercised his visitation on a regular basis. In fact, he petitioned twice to modify his visitation resulting in the parties stipulating to do just that. Although he has not petitioned the Court for visits in prison they are not forbidden. He also states that he has written and sent things to the child while incarcerated.

Most of the child's extended family resides in or around the Yates County area. And although it is generally preferable not to split siblings (Eschbach v. Eschbach), 56 NY2d 167, 173 (1982), the split herein has been caused solely by Mr. "C" moving to North Carolina with their young daughter prior to this Court's determination.

There is no economic necessity for the mother's move given her quitting her job; not having employment in North Carolina and Mr. "C"'s minimal search for New York employment. Even housing is questionable since she leaves the home she owns in New York on which there is a mortgage and moves to a rental property with an option to purchase. Nor was any proof presented to show the comparison of food costs, utilities or other day to day living expenses.

Even child care is questionable in North Carolina since Mr. "C" cared for the children in New York while the mother worked alleviating some day care expense but in North Carolina day care could become an issue since Mr. "C" will be working and the mother would work or go back to school. This clearly is not a "fresh start" or economic necessity for the mother and her current husband as contemplated in Wyant at 1046.

Considering a change in custody from the mother to the father is not appropriate as the father is currently incarcerated and no other relative appears suitable to assume custody.

However, the reasons for the move are not justifiable given the circumstances, to wit: a diminished or static economic opportunity; the child's educational opportunities have not been shown to be better; day care is now an issue if mother and her husband both work or the mother goes back to school which was not the situation in New York. The situation into which the mother wants to relocate is at best precarious and not in the child's best interests. The mother and husband have created a self imposed hardship after this petition was filed and before the Court has made a determination.

Although the father appears to have extended family nearby, there was no proof that there has been any close bond between the extended family and the child. Therefore, these limited contacts do not affect the child in either a quantitative or qualitative sense.

The feasibility of a parallel move was not considered or testified to. But this is not possible at this time since the father is incarcerated. The child's quality of life at the new location is questionable as the proof was insufficient to show the quality of the schools; the mother speaks of going back to school while her husband is working and housing is a lease situation while the mother is leaving her own home in New York with a mortgage. The comparison of the economic issues were not sufficiently proven and the employment opportunities have not been shown to be unique or enhancing to any significant degree.

Any visitation would have to be arranged at the prison but previously on two different occasions the father requested modification of the initial order resulting in stipulations between [*8]the parties, allowing for more visitation.

The proposed move would leave the father without meaningful access to the child, causing a valuable asset in the child's life to be diminished. Slowly but surely this long-distance relationship between the father and son would wither or at least weaken as the child grows older, and the prospect of leaving school friends, missing sporting events or other activities held during recess or during summers becomes less attractive to a youngster (See Matter of Stearns v. Baxter, NYLJ 1/30/97, p. 33, col. 2) not to mention that once the mother secures a job she will surely be limited in accompanying the child to New York.

Clearly, the distance between Penn Yan and North Carolina, is a lengthy drive and may deprive the father of a meaningful opportunity to maintain a close relationship with his son, not to mention the economic costs of same and the father's incarceration.

Based upon the foregoing, this Court finds that the mother has not established, by a preponderance of the evidence, that the proposed relocation would serve the child's best interest.

Therefore, her petition for relocation is denied.

The mother shall continue to have sole custody of the child.

The Court also finds that the child's best interests require a modification of the current visitation order (V-00237-05/07B entered October 17, 2007, in that commencing December 1, 2010 the respondent-father shall have visitation with the child at the correctional facility as arranged between the parties, the child's attorney and in accordance with the facility's rules and regulations. The father is responsible for arranging for suitable transportation to and from the correctional facility. The father shall also have reasonable telephone and letter contact with the child and in accordance with the institution's rules and regulations but without any cost or expense to the mother.

Neither party shall allow one "JW" to have any contact with "S".

The child shall not be removed, by either parent, from New York State except for temporary vacation periods without the prior written order of the Court or the prior written consent of the parties.

Any questions relative to medical, child support, child care and like matters are referred to the Support Magistrate upon proper application of either party.

All other motions of the parties or the child's attorney, including but not limited to, motions upon the hearing herein and reserved by the Court, not consonant with this Memorandum-Decision or not expressly granted are denied. All provisions of any prior decrees or orders relative to the custody or visitation are terminated and substituted by the determination herein.

This decision is without prejudice to either party making further applications regarding custody and or visitation in the future.

The foregoing constitutes the Decision and Judgment of the Court.

Counsel for respondent to submit order within twenty (20) days.

SO ORDERED.

Dated: September 30, 2010.

s/__________________________________

W. Patrick Falvey

Family Court Judge

Yates County