The following papers were considered by the Court in reaching this determination:

Plaintiffs, R. F. and C. M., a married couple, and Defendant, A. H., initially entered into a three-parent custody arrangement dated October 16, 2013 (hereinafter "2013 Agreement), pertaining to the subject child, F.M. (d/o/b XX XX, 2014), which was later ratified after the birth of the child on May 16, 2014. Thereafter, the parties entered into subsequent agreements dated October 17, 2017 (hereinafter "2017 Agreement") and November 25, 2019 (hereinafter "2019 Agreement"). F.M. is currently 11 years old, however, at the time of filing of the motions sub judice, F.M. was 10 years old.

The 2019 Agreement (NYSCEF doc # 95) provided for Plaintiffs to have primary residential custody of F.M. and sole legal custody with final decision-making authority after consultation with Defendant. The parties' access schedule is as follows: alternate weekends with Defendant having every Monday until Wednesday at 9am, if her access is not extended through the weekend prior to the Monday and Plaintiffs have every Wednesday after school until Saturdays at 9am, if their access is not extended through the weekend.

At the time the parties entered into the 2019 Agreement, F.M. was enrolled in the Mamaroneck School District. In an Our Family Wizard ("OFW") message dated November 7, 2023, Plaintiffs informed Defendant of their intention to relocate with F.M. to the John Jay School District in Katonah and the message relayed the reasons for the anticipated relocation, the timing for the move, and an acknowledgment that a discussion is required since the move would affect Defendant's access time with F.M.

On November 9, 2023, Defendant responded to the OFW message and indicated that she did not agree with the reasons for the planned relocation, and she provided reasons for her opposition to the move. Notably, Defendant did not object to the relocation based on the impact to her access schedule or any adverse effect on her relationship with F.M..

MOTION SEQUENCE NO. 9 — TO PREVENT RELOCATION

Thereafter, on March 19, 2024, Defendant filed an Order to Show Cause (Mot. Seq. No. 9) seeking the following relief:

(a) An order restraining Plaintiffs from relocating with the F.M. to a different school district; and

(b) Prohibiting all parties from disparaging the other part(ies) to the Child or to third parties, or discussing this litigation with the Child, including the underlying question of whether Plaintiffs will move; and

(c) Prohibiting all parties from posting any pictures or videos of the Child on any publicly accessible social media; and

(d) Prohibiting all parties from posting any references to this litigation on any publicly accessible social media; and

(e) Directing Plaintiffs to pay interim counsel fees to Defendant in the sum of $50,000.00.

Defendant's motion sought interim relief including a stay of Plaintiffs' relocation pending the determination of her motion. The Court did not grant the interim relief sought by Defendant and the Order to Show Cause was made returnable on April 5, 2024. The Court directed oral argument to be heard on the return date. In an order dated March 22, 2024, Marilyn Faust, Esq. was reappointed as the Attorney for the Child.

In the affidavit in support of her motion, Defendant argues that despite the fact that [*2]Plaintiffs have final decision making with respect to F.M., they cannot move 25 miles away without her permission or the Court's approval. Plaintiff argues that such a move would seriously impact and alter her time with F.M. since she has a 50/50 access schedule with Plaintiffs. Defendant contends that Plaintiffs' actions are intended to seriously damage her relationship with F.M., and that Plaintiffs are trying to eliminate her from F.M.'s life. She stated that on November 7, 2023, she received a message from Plaintiffs informing her that they had made a decision to move to Katonah because F.M. needed an environment which would support his on-line presence and that F.M.'s football interests were better served in the Katonah-Lewisboro School District. Defendant replied that she disagreed that F.M. needed to move to another school district given that he was thriving in the Larchmont/Mamaroneck school district. Defendant argues that this relocation is in violation of their 2019 Parenting Agreement which states that F.M. will attend the Central Elementary School in Mamaroneck. Defendant also contends that Plaintiff R. F. exploits F.M. for his own on-line content purposes.

Defendant stated that she hired her attorney to prevent Plaintiffs' from relocating to the Katonah-Lewisboro area on December 24, 2023, and on January 23, 2024, her attorney wrote a letter to Plaintiffs explaining, once again, that Defendant did not consent to the proposed relocation and that it was not in F.M.'s best interests to relocate. Shortly thereafter, Defendant learned that Plaintiffs had sold their home in Mamaroneck, which necessitate the filing of the instant application.

On April 5, 2024, parties and counsel, including the Attorney for the Child, personally appeared before the Court. During an off-the-record conference, there was a minor earthquake, and the courthouse was evacuated for a brief period of time. Shortly thereafter, court employees and the public were permitted to enter the building again, and the matter was called before the Court. At that point, the Court was advised that Defendant and her attorneys had left White Plains and were refusing to return to the courthouse. Since Defendant refused to return to the courthouse, the oral argument directed in the Order to Show Cause was not heard by the Court and instead, the Court established a briefing schedule.

After consulting with her client on several occasions, Ms. Faust submitted an affirmation dated April 21, 2024, setting forth the child's desire to relocate with Plaintiffs to Katonah (NYSCEF doc # 182). F.M. relayed to Ms. Faust that he had been playing football in Katonah for the John Jay Youth Football League for more than one and one half years; that he has many friends in Katonah; that many of his Katonah friends will be in his classes and his extra-curricular activities; that, on her access days, Defendant has driven him to Katonah so that he can play football and see his friends; that he is not upset about leaving Mamaroneck because he will be able to see his Mamaroneck friends when he sees his mother; that he is looking forward to the move and can't wait until it happens; that he is "thrilled" about going to a new school; and that he loves his new home, his new room, and the Katonah-Lewisboro area. Additionally, F.M. indicated that he loves being on social media. He was happy to discuss his videos on social media for Nickelodeon as well as an interview of an NFL player. F.M. is looking forward to continuing his presence on social media.

MOTION SEQUENCE NO. 10 — COUNSEL FEES

On April 26, 2024, Plaintiffs cross moved (Mot. Seq. No. 10) for an award of $40,000.00 in attorneys' fees based on the claim that Defendant's motion was frivolous. This motion was [*3]returnable on May 15, 2024. In their affidavit in support of their cross motion and in opposition to Defendant's motion, Plaintiffs argue that it is in F.M.'s best interest to move to the Katonah area where he can continue his passion to play tackle football and where he can enroll in a school district that is smaller than his current school district and, therefore, can meet F.M.'s educational needs. Plaintiffs contend that F.M. is a "special kid," whose passion and interest in football is "exceptional" (NYSCEF doc # 234). Plaintiffs argue that in his current football league, the Mamaroneck/Larchmont Youth Football League, "[n]o one saw F.M.'s potential," and F.M. ended up on losing team three years in a row (id.). Plaintiffs stated that while winning isn't everything, this situation highlighted for them the inequities and "what [they] perceived to be bias" that have impacted F.M. negatively within the Larchmont/Mamaroneck Youth Football League (id.). However, the coach in the John Jay Youth Football League, a friend of Plaintiff R. F., took an immediate interest in F.M. because of his "size and obvious athleticism" (id.). F.M. started playing tackle football with the John Jay Youth Football team in 2023, and the team reorganized its practice schedule to work with F.M.'s unique visitation schedule, thereby minimizing the times Defendant would need to pick up and drop off F.M. According to Plaintiffs, the coach saw F.M.'s potential and positioned him in key roles on the offensive and defensive lines. Plaintiff R. F. is also a coach on that team. In 2023, F.M. had his first winning season, and his team went undefeated. According to Plaintiffs, F.M. wants to be an NFL player. Plaintiffs argue that Defendant is attempting to crush F.M.'s dreams.

Plaintiffs note further that last summer Defendant drove from Larchmont to the Katonah/Lewisboro Middle School to drop off and pick up F.M. at practices for the John Jay Youth Football League.

Plaintiffs contend that remaining in the Mamaroneck/Larchmont school district would be detrimental to F.M.'s development because it is too large and won't permit him to have the more individualized attention he needs. Plaintiffs argue that F.M. needs encouragement to focus. They also believe that the children in the Central Elementary School are not as open-minded about F.M. having two Dads as the children are in the Katonah/Lewisboro school district.

Plaintiffs argue that F.M.'s social media presence is "electrifying" (id.). Plaintiffs state that F.M.'s "passion and love for football and his natural talent as a social media storyteller can unlock opportunities for him in sports media and in marketing" (id.). Plaintiffs argue that top colleges look at their applicant's social media presence and their public identity in determining acceptance and scholarships. Plaintiffs contend that in 2024, "a social media footprint . . . is priceless to building self-confidence and succeeding in the future" (id.).

Finally, Plaintiffs characterize Defendant's motion as spiteful, and that Defendant is putting her own self-interests above those of F.M.

DEFENDANT'S ANSWER TO CROSS MOTION

On May 10, 2024, Defendant submitted opposition to Plaintiffs' cross motion. Defendant contends, among other things, that she is not opposing the relocation because it is inconvenient for her, but rather because she has genuine concerns about F.M.'s best interests, including how it would negatively impact the quality and quantity of her time with F.M., and their relationship. Defendant argues that according to Plaintiffs it is more important for F.M. to create social media content than it is for him to spend time with his mother. Further, Defendant does not think that packaging F.M.'s life for mainstream public consumption is good for F.M.

It is important to highlight that since these motions were marked fully submitted, all [*4]parties currently reside in the Katonah/Lewisboro School District area as of August 2024. Plaintiffs live in Golden Bridge and Defendant lives in South Salem. Notwithstanding each party's relocation, Defendant has insisted in letters addressed to the Court that the issues before the Court are not moot. The letters regarding Defendant's position evaded the Court's attention until the most recently filed letter from Plaintiff's counsel, Becky Stern, Esq., dated February 28, 2025. Plaintiffs have argued in letter correspondence addressed to the Court (NYSCEF doc # 271) that the relief sought in Defendant's motion is moot and sanctionable as frivolous. This Court agrees with Plaintiffs to the extent that the relief sought in Defendant's motion is moot. However, to the extent that Defendant has claimed there is still a case and controversy to be determined, the Court will engage in an analysis of the Tropea factors for relocation. Based on this Court's analysis, this Court finds that Plaintiffs relocation to Katonah serves the best interest of the child.

TROPEA FACTORS

It is well settled law that a parent seeking to relocate has the burden to establish the move is in the best interest of the child (see Matter of Picitelli v. Carbone, 208 AD3d 582, 583 [2d Dept 2022]). Pursuant to the seminal case governing relocation (see Tropea v. Tropea, 87 NY2d 727 [1996]), the Court must consider and give appropriate weight to several factors, including but not limited to: 1) the impact of the move on the relationship between the child and the noncustodial parent; 2) the custodial parent's reasons for wanting to relocate and the benefits that the child may enjoy or the harm that may ensue if the move is or is not permitted; 3) economic necessity or a specific health related concern; 4) the demands of a second marriage and the custodial parent's opportunity to improve his or her economic situation; 5) the noncustodial parent's interest in securing custody, as well as the feasibility and desirability of a change in custody; 6) the child's ties to the noncustodial parent and to the community; 7) the good faith of the parents in requesting or opposing the move; 8) the child's respective attachments to the custodial and noncustodial parent; 9) the possibility of devising a visitation schedule that will enable the noncustodial parent to maintain a meaningful parent-child relationship; 10) the quality of the life-style that the child would have if the proposed move were permitted or denied; 11) the negative impact, if any, from continued or exacerbated hostility between the custodial and noncustodial parents; and 12) the effect that the move may have on any extended family relationships.

The Court has authority to consider and give weight to all the factors that may be relevant to the determination. Fundamentally, "each relocation request must be considered on its own merits with due consideration of all the relevant facts and circumstances and with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child." (id.). Moreover, "while the respective rights of the custodial and noncustodial parents are unquestionably significant factors that must be considered, it is the rights and needs of the children that must be accorded the greatest weight." (id.)

While the Court recognizes that relocation determinations are typically rendered after a full evidentiary hearing, it has been held in H.K. v. R.C., 151 N.Y.S.3d 836, that a relocation hearing is unnecessary where the Court finds there are no disputes as to "facts essential to the best interest analysis and the circumstances surrounding such facts" (Id. at 842). This Court can [*5]readily ascertain from the motion papers alone the following Tropea factors: the custodial parents' reasons for wanting to relocate, the non-custodial parent's reasons for opposing the move, the possibility of devising a visitation schedule that will enable the non-custodial parent to maintain a meaningful parent-child relationship, the quality of the lifestyle that child will have if relocation is permitted, and the wishes of the child. Similar to the H.K. case, this case "is one of the rare instances where the determination on relocation can be made without the need for further proceedings." (Id.)

Plaintiffs argue relocation will provide the child with greater opportunities academically, socially, and within his extra-curricular activities. Plaintiffs believe a smaller school in Katonah would be more beneficial to the child and they also claim that Katonah is more welcoming to non-traditional families such as theirs. Although no proof was provided to the Court to substantiate the claim pertaining to non-traditional families, Defendant did not dispute the claim. Defendant opposes the move as another calculated attempt by Plaintiffs to cause a rift in Defendant's relationship with F.M.

Defendant opposes the relocation because she presumes it will interfere with her access with the child and, therefore, will negatively affect her relationship with the child. While the Court recognizes that the drive from Mamaroneck to Katonah may be inconvenient, Defendant argues that the "frustrating commute" would only serve to amplify the strain in Defendant's relationship with the child. Defendant's position in this regard ignores the fact that Plaintiffs offered to assist with the commute. Additionally, Defendant's position regarding the further deterioration of her relationship with the child is pure conjecture. Thus, the Court finds Defendant's opposition in this regard to be unavailing. Although the parties dispute the travel time from Mamaroneck to Katonah — Plaintiffs claim the drive is 37 minutes in rush hour traffic and Defendant claims the drive is 60 minutes in rush hour traffic — this Court finds that said discrepancy is not sufficient to form the basis for a hearing in this matter.

In further opposition, Defendant claims that the parties' 2019 Agreement requires the child to remain in the Mamaroneck School District. This representation is false. A review of the parties' 2017 and 2019 Agreements demonstrates that the parties only acknowledged that the child would attend Central Elementary School. The parties' agreements were clear and there was never an agreement that the child would remain in Central Elementary School, let alone the Mamaroneck School District. It is duly noted that the parties' 2019 Agreement awarded Plaintiffs final decision-making authority with respect to issues of "health, education, welfare, growth and development ... [and] choice of school" (NYSCEF doc # 95) (emphasis added).

Defendant asserts further that the proposed relocation would be detrimental to the child because the public school in Mamaroneck is superior to the public school in Katonah. In support of her claim, Defendant annexed to her papers the "Niche" ^[FN1] school ratings for the middle school in both districts (see Exhibit EE [NYSCEF doc # 267] and Exhibit FF [NYSCEF doc # 268]). The documents reflect that Hommocks Middle School in Mamaroneck is ranked #12 among the best public middle schools in Westchester County while John Jay Middle School in Katonah is [*6]ranked 125th among the best public middle schools in Westchester County. Notwithstanding the discrepancy in ranking, both schools report a 79% proficiency in reading while Hommocks Middle School has a higher proficiency in math at 65% compared to just 58% at John Jay Middle School. It is duly noted that Hommocks Middle School has 1,290 students while John Jay Middle School has 683 students. In addition, both schools have a student-teacher ratio of 11:1. In contrast to the Exhibits EE and FF, Defendant also submitted Exhibit Q in her initial application which indicates a ranking of the best public schools in Westchester County with Katonah ranking higher at number 9 and Mamaroneck ranking 10th. Based on her own submissions, this Court finds that the school districts are roughly equivalent and any minor differences in the quality of education would not give rise to essential facts for a best interest determination that would require a hearing.

Since Defendant has relocated and now lives near Plaintiffs and the child, the access schedule in the 2019 Parenting Agreement can continue without disruption. However, even if Defendant did not relocate, the parties' 50/50 access schedule could have continued without disruption. Recognizing the inconvenience to Defendant, Plaintiffs offered to assist with driving so that Defendant would not have to assume the full responsibility of transporting the child. Although Defendant has attempted to characterize her relocation as a noble sacrifice because she did not want her relationship with F.M. to suffer the burden of commuting, this Court views her relocation as an admission that relocation was the proper choice.

Plaintiffs allege that relocation to Katonah would enhance the child's lifestyle because Katonah is more friendly in terms of acceptance of Plaintiffs' lifestyle and the parties' unconventional parenting arrangement. Defendant does not dispute that the Katonah community is more welcoming to the family. It is duly noted that, in the 2013 Agreement, the parties agreed that " . . . parenting by choice outside of marriage, gay parenting, single parenting and falsehoods about lifestyles may not have the approval of the more socially conservative members of society . . . [and the parties] are committed to doing what is necessary to reasonably protect their Child from the experience of any such prejudice or disapproval if it should occur . . . " To the extent that Plaintiffs have raised the issue of residing in a more socially liberal area and Defendant has failed to dispute said claim, this Court finds that this reason alone is sufficient to establish that the best interests of the child would be served by relocation.

Ms. Faust relayed the child's desire to relocate. The Court has considered the child's wishes, in conjunction with the factors above, in reaching this determination and the Court gives great weight to F.M.'s clear excitement about moving to the Katonah/Lewisboro area to play football, be with friends, and to live in his new home.

REMAINING RELIEF

With respect to that branch of Defendant's motion seeking to prohibit the parties from disparaging each other in front of F.M., that application is denied as Ms. Faust indicated that [*7]F.M. represented to her that none of the parties disparage each other in front of him.

With respect to that branch of Defendant's motion which seeks to prevent all parties from posting pictures or videos of F.M. on any publicly available social media, given the desires of F.M. and the past practices of all parties, that application is denied.

With respect to that branch of Defendant's motion which seeks to prevent all parties from posting any references to this litigation on any publicly accessible social media, that application is denied as there is no evidence to suggest that the parties have posted about this litigation on social media.

Plaintiffs and Defendant have moved for an order awarding them attorney's fees. This Court finds no basis to award either party counsel fees. The Court notes that all three of the parenting agreements are silent on the issue of an award of attorneys' fees in this regard and this Court does not find DRL § 238 to be applicable in this circumstance. The parties are hereby advised that they would be best served by reasonable cooperation and communication or perhaps the parties can avail themselves of counseling, and then mediation, as contemplated in their 2013 Agreement.

To the extent that any relief requested in Motion Sequence Numbers 9 and 10 is not specifically addressed herein, said relief is denied.

In the never-ending balancing act that the Court is called upon to conduct in a best interests determination, the Court recognizes the inconvenience to Defendant in relocating while also recognizing that "the rights of the custodial and non-custodial parents are significant factors that must be considered (see Strahl v Strahl, 66 AD2d 571 [2d Dept 1979]), but "it is the rights and needs of the [child] that must be accorded the greatest weight" since the child is an innocent party with respect to their parents custodial arrangement (see Tropea v Tropea, 87 NY2d 727,739). In balancing the interests of the parties and that of the child, this Court finds that, based on the papers alone, the child's interests are best served by Plaintiffs' relocation. Accordingly, Defendant's application to prevent Plaintiffs from relocating with the child is denied. In accordance with the foregoing, it is hereby

ORDERED that Defendant's motion sq # 9 is denied in its entirety; and it is further

ORDERED that Plaintiffs' motion seq # 10 is denied in its entirety.

The foregoing constitutes the Decision and Order of the Court.