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Anne S. v. Peter S.

92 A.D.3d 483 Court N.Y. App. Div. Decision date 2012-02-09 English

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p. 483
In the Matter of Anne S., Appellant, v Peter S., Respondent.
[938 NYS2d 73]
p. 484
Plaintiff failed to demonstrate that the determination denying her application to relocate lacks a sound and substantial basis in the record (see Matter of David J.B. v Monique H., 52 AD3d 414 [2008]) or that relocation would be in the children’s best interests (see Matter of Tropea v Tropea, 87 NY2d 727 , 740-741 [1996]). She failed to demonstrate that relocation was warranted based on economic necessity (compare Matter of Harrsch v Jesser, 74 AD3d 811 [2010]) or that she would receive increased support in Luxembourg from her extended family, who live nearby in Luxembourg and France (compare Amato v Amato, 202 AD2d 458 [1994], lv denied 83 NY2d 759 [1994]). The record shows that defendant has a stable job and has, for the past four years, maintained a stable home for the children, in the community in which they have always lived, near their school, their extracurricular activities and their friends; moreover, the children are happy and successful in their current school (see e.g. Matter of Solomon v Long, 68 AD3d 1467 [2009]; Impastato v Impastato, 62 AD3d 752 [2009]).

Contrary to plaintiffs argument, the court considered seriously and addressed the court-appointed evaluator’s concerns about defendant’s alcoholism and his past failure to communicate appropriately with plaintiff (see Neuman v Neuman, 19 AD3d 383 [2005]). Among other things, the court placed strict conditions on defendant’s continued custody of the children, including that he maintain sobriety and continue intensive treatment, attend thrice-weekly therapy sessions, submit to mandatory testing, and install an Interlock breathalyzer ignition system in his car. The court also ordered that defendant maintain open communication with plaintiff about the education and care of their children.

We find that plaintiffs visitation schedule is reasonable under the circumstances and that there is no basis on which it should be disturbed. Concur — Tom, J.P, Sweeny, Acosta, Renwick and Román, JJ.

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