The Court heard testimony in cross custody, visitation and relocation proceedings. The parties have a child in common, C.B. He was twenty-two months old when the case commenced. An attorney for the child was not appointed due to his tender age and inability to fully communicate. He is now three years old. The Court notes that both parties filed their petitions on February 28, 2014. The Petitioner-Respondent mother, Ms. D.V., filed her petition first. She is seeking custody and permission to relocate to Schenectady, NY where she has been living since February or March 2014. Her petition states, "Petitioner loves her son. She is her child's mother; she is moving out of the city; she desires to take her son with her and to be his mother; in all its capacity, legally and independent of the resp."

Respondent-Petitioner father, Mr. C.B., seeks an order of joint custody and visitation and an order preventing Ms. D.V. from relocating with the parties' son The child C.B.. His petition states, "Parties currently live together with father's family. Respondent-mother plans to move to Albany, taking the subject child, a 22-month-old male infant, with her. This is disturbing to the father. Firstly, the father does not know how the mother plans to provide for herself or the child, since she has no family where she plans to move. The mother plans to live with a friend, but doesn't have a job lined up in Albany. It is the father who has provided the child with all his material needs. Secondly, the father feels a child needs his father in his life, and he wants to be able to see the child on a daily basis. In light of all of the foregoing, father is seeking an Order of joint custody and visitation, with language forbidding the mother from relocating outside New York City with the child unless either the father or the Court gives its consent."

Both parties filed violation petitions on September 12, 2014. Both petitions were voluntarily withdrawn and dismissed without prejudice in court on October 14, 2014. Both parties were represented by court assigned counsel. Ms. Latrice V. Campbell represented Ms. D.V. Mr. Joseph V. Moliterno represented Mr. C.B..

The Court recognizes the complex nature of these proceedings and the competing interests this Court is required to balance in this decision. The Court heard testimony during the following six hearing dates: October 6, 2014, October 20, 2014, November 6, 2014, January 12, 2015, April 23, 2015 and May 1, 2015. Both attorneys submitted written summations to the Court by May 27, 2015. The Court also notes that counsel for the parties in this litigation were zealous advocates for their clients while also noticeably civil, respectful and professional throughout the hearing dates and several conferences. Both parties were noticeably respectful during the proceedings.

Ms. D.V. testified that she has always been the primary caretaker for the child. She stayed home when the child was born to care for him. Mr. C.B. worked from 5pm to 6am, seven days per week. She returned to work when the child was two and one half months old. She testified that the paternal grandmother, would watch the child while she worked. The paternal grandmother also helped her with preparing food and bottles for The child. Mr. C.B. would not help her at all. He paid half of the rent. While residing in Bronx, New York, she worked at Popeye's fast food restaurant from 8am to 4pm. She earned $10.00 per hour. She left the home in February or March 2014 after Mr. C.B. asked her to leave. She moved before filing the petition. She looked at ten apartments in Bronx, New York. She did not look at any apartments in the four other boroughs of New York City. In Schenectady, she earned $8.50 per hour for thirty hours per week while working at Burger King. She chose the child's pediatrician when she lived in the Bronx. She chose the pediatrician and day care center for the child in Schenectady without consultation with Mr. C.B. citing "poor communication between us" as the reason. (See transcript 10/6/14, page 15, line 7). She feeds, clothes, bathes and takes the child to school and medical appointments. She testified that Mr. C.B. does not attend doctor appointments with her and the child. She testified that the child is a well child.

The Court credits the testimony of the paternal grandmother that she helped Ms. D.V. when stayed home to care for the child. The Court also credits her testimony that she cared for The child when he was two and half months old when Ms. D.V. returned to work. She testified that she and both parents cared for the child. She did state that Ms. D.V. did more for the child. Her testimony is not credible that Mr. C.B. helped the paternal grandmother care for the child when he returned home at 7am after working all night. The paternal grandmother testified that the child would wake up at 10am. She also testified that Mr. C.B. and the child would go to sleep at 11am and "sleep for a while." (See transcript 11/6/14, page 33, line 22). She also testified that he would feed the child sometimes if she was in the kitchen. The paternal grandmother did not provide concrete examples of what Mr. C.B. did for the child on a regular basis. She never observed Mr. C.B. strike Ms. D.V. or the couple argue.

Mr. C.B. testified that Ms. D.V. stayed home to care for The child for his first two and a half to three months of life. He testified that he works as a chauffeur. He helped Ms. D.V. out financially until she left his parents' home. (See 1/12/15 transcript, page 14 lines 13-14). He never agreed for the child to move to Schenectady, NY He further testified that Ms. D.V. left their home on February 28, 2014. She left the child for three weeks. He did not provide testimony regarding who cared for the time during this period. The Court does not credit Mr. C.B.'s testimony regarding Ms. D.V. leaving the child. The paternal grandmother did not provide testimony regarding this fact. Mr. C.B. did not provide any information regarding who cared for the child. He continued his testimony stating that she wanted to move to spend time with her "lesbian partner she needed time to move out of the apartment because she didn't have money, and that she wanted to wait for her tax return in order to move." (See 1/12/15 transcript, page 13, lines 20-24). During his testimony on January 12, 2015, Mr. C.B. testified "I do not know where she lives." (See 1/12/15 transcript, page 15 line 9). He did not know the name of the daycare provider for his son.

Mr. C.B. testified about his close relationship with his son. He enjoys visits on three weekends per month. His son is close to his mother and father, the child's paternal grandparents. Mr. C.B. denies striking Ms. D.V.. The Court credits his testimony that Ms. D.V. bathed The child, changed his diaper, prepared his bottles and meals and did the child's laundry. The Court [*2]does not credit his testimony that after working as a chauffeur for ten to eleven hours, he would sleep for four hours and then care for a three month old child for four to five hours.

On cross-examination, Mr. C.B. testified that Ms. D.V. took the child to all of his medical appointments. He attended only one appointment when The child was two or three months only. He testified that he is concerned about the child's health. He has a cold, allergy or some sort of infection. He supplies "juice, milk and cookies" during visits. The paternal grandmother prepares the child's meals and puts him to bed at night. (See 4/23/15 transcript, page 7, line 22 to page 7, line 16).

Mr. C.B. testified that he is not providing any child support for the child since he moved to Schenectady. "I used to give cash and now I have child support but I'm working on an appeal." He continued that he does not provide any financial assistance for the child. (See 4/23/15 transcript, lines 15-21). During his testimony on May 1, 2015, Mr. C.B. stated that he is going to appeal the order; he has not done so yet. He then testified that he provided financial support for the child but he "wouldn't be able to tell you the amount. I have no records of it." (See 5/1/15 transcript, page 5, lines 4-7). The Court does not credit Mr. C.B.'s inconsistent and contradictory testimony that he provides support for The child.

The Court had the unique opportunity to assess the credibility, truthfulness, character, demeanor and sincerity of both parties during their testimony on nine trial dates. The Court credits the testimony of the Petitioner Ms. D.V..

It is undisputed that the parties lived together at the paternal grandparents' home with their son until February or March 2014. Ms. D.V. testified that Mr. C.B. asked her to leave. Mr. C.B. denies that and testified that Ms. D.V. wanted to leave to be with someone else. It is undisputed that Ms. D.V. has been living in Schenectady, NY since February or March 2014. Mr. C.B. did not consent for the child to live so far away. Ms. D.V. testified that she had no other housing options. She did not want to live in a shelter in NYC. Her only family member, her father, lives in Long Island. They do not have a relationship. She moved to Schenectady, NY after sending $3000 to her friend to secure an apartment. She testified that she looked in New York City for apartments that ranged from $850 for a studio, $1000 for a one bedroom and $1200 for a two bedroom apartment. She currently pays $700 per month for a two bedroom in Schenectady. Schenectady is five hours each way by bus.

The legal standard for all custody and visitation disputes is the best interests of the child. (Friederwitzer v Friederwitzer, 55 NY2d, 89, [1982]; Eschbach v Eschbach, 56 NY2d 167, [1982]).

It is undisputed that the child has lived with his mother Ms. D.V. throughout his life. The court credits Ms. D.V.' testimony that she has provided for all of the daily needs of The child, including clothing, food, child care and medical care. It is in the child's best interest to live with Ms. D.V. in New York. Mr. C.B. has not provided financial support for the child since at least February 2014. Ms. D.V. stayed home to care for the child when he was born. The paternal grandmother assisted both parents when Ms. D.V. returned to work. Mr. C.B. testified that Ms. D.V. cooked all meals, made the bottles, bathed and took care of all medical concerns of the child. Mr. C.B. worked overnight as a chauffeur seven days per week. It is incredible that he cared for the child in the mornings when he returned home tired from driving all night. He napped with the child while his mother cared for the child when Ms. D.V. was at work.

As the party seeking permission to relocate, Ms. D.V. is required to demonstrate by a preponderance of the evidence that relocation to Schenectady would be in the The child's best interests. (See Matter of Tropea v Tropea, 87 NY2d 727, 741 [1996]). Among the factors the court must consider to determine a relocation petition are "each parent's reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the child's future contact with the noncustodial parent, the degree to which the custodial parent and child's life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements." (Tropea at 740—41. See also Alaire K.G. v Anthony P.G., 86 AD3d 216 [1st Dept 2011]).

This Court discusses the factors in the Court of Appeals Tropea case to support its decision to deny Ms. D.V.' decision to relocate to Schenectady. Custody and visitation decisions should be made in the best interest of the child, not to benefit or harm the parent. "It is the rights and needs of the children that must be afforded the greatest weight." Tropea at 739.

The Court credits the testimony of Ms. D.V. that she has taken care of The child's needs for the child's entire life. The Court notes that both parties testified that Mr. C.B. is not paying child support, although court ordered.

The Court believes that Ms. D.V. would not foster a relationship between Mr. C.B. and The child if she were allowed to relocate. "The custodial parent must be able to place the child's needs first while fostering a continued relationship between the child and the non-custodial parent." (Matter of Koegler v. v Woodard, 96 AD3d 454, 455 [1st Dept 2012] citing Matter of James Joseph M v Rosana R., 32 AD3d 725, 726, [1st Dept 2006]). The Court notes that Ms. D.V. moved to Schenectady, five hours away from Bronx, New York, without court permission or the consent of Mr. C.B.. The parties have been in Court for one year. Both parties cite poor communication as a barrier to working together for the child.

The Court notes that Ms. D.V. did not provide a solid case for relocation. There was no evidence proving that she is required to move due to economic necessity. She is currently working for Burger King. She did get a raise and promotion to shift manager. There are numerous Burger King restaurants in New York State, closer to Mr. C.B.. She also receives government assistance for child care. She did testify that her rent is lower. There are affordable housing applications available for housing closer to Bronx, New York. Ms. D.V. testified that the child was tested for autism and is a well child.

There is a long distance between New York and Schenectady. The bus ride is between three to five hours each way. Mr. C.B. will not be able to maintain a meaningful relationship with his young son if he remains upstate. Once the child starts school it will be even more difficult for The child to travel on the weekends. Mr. C.B. would not be able to see his son regularly. The child lived in the home with him until Ms. D.V. moved on February 28, 2014. The child is still young and able to maintain an important emotional attachment and relationship with his father Mr. C.B..

Ms. D.V.' desire to find an affordable home for her and her son is reasonable. She did not look at any of the remaining counties of New York City or neighboring counties before moving so far away. She did not move in good faith as Mr. C.B. objected to it. She filed a petition in Bronx Family Court. She moved without obtaining a court decision.

The child has always lived with Ms. D.V., his mother and primary caretaker. He is three years old and has a significant relationship with his mother who provides for his daily needs. While he did live with both parents, the court finds that it would not be in his best interest live with Mr. C.B.. The paternal grandmother provides for the child's needs during the visits.

The child is attached to both parents. He lived with his parents and his paternal grandmother and grandfather at his grandparents' home. He left that home with Ms. D.V. when he was approximately twenty-two months old. It is undisputed that the paternal grandmother helped both parents care for the child from birth until he left the family home. The child is now three years and five months old. As per an agreement by the parties which was memorialized by a temporary court order, The child visits his father three weekends per month. The child also sees his grandparents during the visits as Mr. C.B. continues to live with his parents.

The Court does not believe that The child will be able to maintain a meaningful parent-child relationship with Mr. C.B. if Ms. D.V. stays in Schenectady. The bus ride from Schenectady to New York is five hours each way. It is not in the best interest of this young child, now three years old, to travel ten hours each weekend for visitation with Mr. C.B.. Once he starts school, this will interfere with his academic responsibilities and prevent him from regularly participating in social and extra-curricular activities.

The parties have agreed and substantially complied with three weekend monthly visitation for Mr. C.B. during the pendency of the proceedings. There were some issues regarding payment of transportation. The child is now three years old. Mr. C.B. will not be able to have mid-week parenting time with The child starts school. His participation in The child's education would also be limited. He would not be able to help The child with his homework or regularly attend school events.

The testimony did not prove that there would be a substantial change in the child's lifestyle if the relocation is not granted. The child will be able to continue his relationship with his father and paternal grandparents because the relocation is denied. There is no financial advantage for the child if the relocation is granted. Ms. D.V. was employed in the fast food industry in the Bronx and continues to work in that field in Schenectady.

The parties are not able to effectively communicate with each other for the benefit of the child. Ms. D.V. testified that the parties broke up due to poor communication.

The child could have a happy life in Schenectady or another county downstate in New York. He would be deprived of having a consistent and meaningful relationship with his father and grandparents if he resides upstate.

Both counsels made reasonable arguments on behalf of their clients. Mr. Moliterno's argument is the prevailing argument for relocation in this Court's opinion. Ms. D.V. can obtain employment and housing closer to Bronx County. She did not leave for an employment transfer. She has no family in Schenectady. While she has a father in Long Island who she is estranged from, the child has paternal relatives in Bronx County with whom he lived. More importantly, it is in his best interest for The child to continue his relationship with his father, Mr. C.B., who resides in Bronx, New York.

Ms. D.V. is the primary caretaker of the child and should continue that role. Her testimony was credible. Mr. C.B. and the paternal grandmother also supported her position as the child's primary caretaker. Her attorney's argument wholeheartedly supported her position. It is this Court's expectation that Mr. C.B. and Ms. D.V. will work on their communication skills to benefit The child. He has a relationship with both parents. There was no testimony regarding danger to the child while in either parent's care.

The Court grants sole legal and physical custody of the child The child to Ms. D.V.. Mr. C.B. shall have access to all records relating to The child's medical, mental health, education and any other services provided. Ms. D.V. shall keep Mr. C.B. updated for all providers and schools of the child. Notice shall be sent by certified mail, return receipt requested within 24 hours of any change. Mr. C.B. shall be named on the emergency card for every school that The child attends. Mr. C.B. may contact every teacher, medical [*5]provider and any other person who provides services to The child. Both parents shall contact the other if there are any medical emergencies of the child. If there is a medical emergency while The child is in Mr. C.B.'s care, he shall contact Ms. D.V. as soon as possible ensuring that the child obtains the medical attention he needs. Every attempt shall be made contact Ms. D.V. prior to obtaining medical care for the child. Mr. C.B. may obtain emergency medical treatment under this court order as provided in this paragraph.

Ms. D.V.' petition for relocation to Schenectady is denied. Her petition is granted in part, in that Ms. D.V. shall move by January 15, 2016 to one of the counties listed:

This Court orders visitation schedule as follows:

Mr. C.B. shall have parenting time effective October 23, 2015 on alternate weekends from Friday 6:00 pm until Sunday 6:00 pm. Up until Ms. D.V.' relocation, Ms. D.V. shall pay for the child's roundtrip transportation cost for the first visit per month. Mr. C.B. shall pay for the child's roundtrip transportation cost for the second visit per month. Pick up and drop off shall occur at the Parental Grandmother's home.

Upon Ms. D.V.' relocation, Mr. C.B. shall pick up and drop off The child at his home in New York City (five counties), Westchester, Rockland, Nassau or Suffolk County for all parenting time unless the parties modify upon written notarized mutual consent. If Ms. D.V. does not move to one of the five counties of New York City, Westchester, Rockland, Nassau or Suffolk County, she shall drop off the child at Mr. C.B.'s home and he shall return the child home to Ms. D.V.. Mr. C.B. is to be present during his parenting time.

Parties may modify this parenting time upon written notarized mutual consent.

Holiday parenting time:

Parents shall alternate holidays as follows: Until the child begins school, school breaks are determined based on the New York City Department of Education calendar which can be [*6]found online.

1) February school break — Even years Ms. D.V., Odd Years Mr. C.B..

2) April Easter Spring school break — Even years Mr. C.B., Odd years Ms. D.V..

3) Memorial Day (Saturday morning 10am until Monday 6pm) — Even Years Ms. D.V., Odd years Mr. C.B..

4) Mr. C.B. shall have every Father's Day weekend — Saturday morning 10am- Sunday 5pm.

5) Ms. D.V. shall have every Mother's Day weekend.

6) Summer Parenting Time — Effective 2016, Mr. C.B. shall have parenting time from July 1st to July 31st. Ms. D.V. shall have parenting time from August 1st to August 31st.

7) Labor Day weekend (Saturday morning 10am to Monday 6pm) — Even Years Mr. C.B., Odd years Ms. D.V..

8) Thanksgiving (Wednesday when school ends by 10pm until Sunday 7pm after Thanksgiving) — Even years Ms. D.V., Odd years Mr. C.B.

9) Christmas break (the evening school ends or December 23rd at 6pm to January 1st at 6pm) — Even Years Mr. C.B., Ms. D.V. odd years. The parties may agree to split the Christmas holiday upon mutual consent.

10) Mr. C.B. shall pick up and drop off The child at his home in New York City (five counties), Westchester, Rockland, Nassau or Suffolk County for all parenting time unless the parties modify upon written notarized mutual consent. If Ms. D.V. does not move to one of the five counties of New York City, Westchester, Rockland, Nassau or Suffolk County, she shall drop off the child at Mr. C.B.'s home and he shall return the child home to Ms. D.V..

11) Ms. D.V. shall maintain a working cell phone or home phone so that Mr. C.B. may contact The child by phone.

12) Both parties shall notify each other of updated phone and address information, at least 7 days before a proposed move. In the event of an emergency only, contact information must be provided within 24 hours of an emergency move. The child may not relocate outside of the counties listed in this order.

13) Parties may modify this order upon mutual written consent only using a letter signed and notarized by both parties, or mutual emails or text messages confirming the modification.

14) Mr. C.B. shall have liberal phone calls, text messages and video chats with The child through Face Time, Viber, WhatsApp, Skype or other video conferencing applications. The court notes that the child is three years old. All calls should be based on the child's abilities, developmental stage and age appropriate communication expectations.