February 5, 2020 Decisions

February 10, 2020
By PetroskeLaw

Family Court erred in denying mother’s petition for relocation, Mother established move to South Carolina is in children’s best interests
Matter of Masiello v. Milano, 2019-01886; Matter of Milano v. Masiello, 2019-01886

The mother appealed from an Order of the Family Court which, after a hearing, denied her petition for permission to relocate the parties’ children (ages 9 and 10) to South Carolina, and granted the father’s petition for sole custody. The Appellate Division reversed.

“A parent seeking to relocate with a child bears the burden of establishing by a preponderance of the evidence that the proposed move would be in the child’s best interests” (Matter of Hall v. Clas, 144 AD3d 801, 802, quoting Matter of Ventura v. Huggins, 141 AD3d 600, 600). The Appellate Division found that the Family Court’s determination that the children’s best interest would not be served by relocating to South Carolina to live with the mother is not supported by a sound and substantial basis in the record.

The attorney for the children supported the mother’s petition. The record demonstrates that while both parties are loving and fit parents, the mother had been the primary caregiver for the children for a majority of their lives, the children established a primary emotional attachment to the mother, and expressed their desire to relocate with the mother during the in camera interview conducted by the Family Court. Further, the mother’s testimony at the hearing established that the mother would foster a positive relationship between the father and the children, the relocation would provide her with an opportunity to improve her economic situation because she was gainfully employed in South Carolina, and her living expenses were reduced because she was residing with the maternal grandmother. Lastly, a liberal parental access schedule for the father, including extended visits during the children’s school vacations, will maintain a meaningful relationship between the father and the children.



Family Court properly denied former husband’s request to terminate spousal maintenance, Record lacked insufficient evidence that former wife was holding herself out as her boyfriend’s spouse
Matter of Casey v. Casey, 2019-04981

The parties were divorced in 2015. In 2017, the former husband filed a petition seeking to modify his obligation to pay child support on the ground of injury and to terminate his obligation to pay spousal support on the ground that the former wife was living with her boyfriend. After a hearing, the Support Magistrate denied that branch of the petition which was to modify his child support obligation, and granted that branch of his petition which was to terminate his spousal support obligation. The Family Court granted the former wife’s objection and, after a hearing upon remittitur, the former husband’s spousal support obligation was reinstated. The former husband appealed from an order denying his objections to the reinstatement order.

The former husband failed to meet his burden of demonstrating that termination of his spousal support obligation was warranted under Domestic Relations Law § 248. There was insufficient evidence that the former wife was “holding…herself out” as her boyfriend’s spouse so as to permit relief pursuant to Domestic Relations Law § 248 (see Matter of Bliss v. Bliss, 66 NY2d 382, 387-388; Northrup v. Northrup, 43 NY2d 566; Matter of Connor v. Connor, 171 AD3d 746, 748).

Lastly, the father is not entitled to another hearing on the issue of a downward modification of his child support obligation (see generally Matter of Rafferty v. Ettinger, 150 AD3d 1016, 1016).