Tropea v. Tropea , 624 N.Y.S.2d 1010 ( 1995 )

—Order modified on the law and as modified affirmed without costs and matter remitted to Onondaga County Family Court for further proceedings in accordance with the following Memorandum: The parties were married in July 1981 and have two children: Brandon, who was born in 1985, and Kyle, who was born in 1988. They entered into a separation agreement that was incorporated into a divorce decree. Under the terms of the agreement, petitioner has custody of the two children subject to respondent’s visitation rights. The agreement provides that neither party may relocate outside Onondaga County without court approval. In June 1993 petitioner filed a petition seeking permission to relocate with the children from Syracuse to Schenectady. Respondent filed a cross petition seeking a change of custody. Following a hearing, the Judicial Hearing Officer (JHO) dismissed both the petition and cross petition.

- The JHO erred in dismissing the petition. Petitioner established that the relocation would not deprive respondent of regular and meaningful access to his children (see, Matter of Giovannone v Giovannone, 206 AD2d 869, lv denied 84 NY2d 805; Matter of Lake v Lake, 192 AD2d 751; Conte v Conte, 176 AD2d 247). Additionally, petitioner has proposed a visitation schedule that will afford respondent frequent and extended periods of visitation with the children. Moreover, petitioner has indicated a willingness to ensure respondent’s regular and frequent contact with the children and has offered to provide their transportation for visitation with respondent.

The record establishes that permitting the relocation is in the best interests of the children. Therefore, we modify the order appealed from by granting the petition to permit petitioner to relocate with the children from Syracuse to Schenectady and by vacating that part of the fourth ordering paragraph continuing the prior visitation arrangements, and we remit the matter to Onondaga County Family Court for further proceedings to fix visitation.

All concur, Lawton, J., not participating. (Appeal from Order of Onondaga County Family Court, Comstock, J.H.O—Relocation.) Present—Pine, J. P., Lawton, Fallon, Wesley and Davis, JJ.