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ALTHOUGH IT WAS A VERY CLOSE CASE, THE EVIDENCE DID NOT SUPPORT A CHANGE IN CUSTODY SUCH THAT THE COUPLE’S SON, WHO HAS BEEN DIAGNOSED WITH AUTISM, WOULD RELOCATE WITH FATHER TO MASSACHUSETTS, DESPITE FATHER’S BEING MORE FINANCIALLY SECURE THAN MOTHER; FAMILY COURT DID NOT GIVE PROPER WEIGHT TO THE SON’S WISHES (THIRD DEPT).

The Third Department, reversing Family Court, determined, in a very close case where both parents love and want the best for their children (who have been diagnosed with autism), father did not demonstrate a sound basis for modifying the custody arrangement to allow relocation with his son to Massachusetts:

… [I]t is clear that the son is very strongly bonded to the mother. Indeed, he has lived with the mother for the last six years since the father moved to Massachusetts, except for short periods of visitation with the father. Moreover, the son has had very little visitation with the father since the 2019 holiday season due largely to the COVID-19 pandemic. Additionally, although the father cites the living conditions at the mother’s home as the motivation for initially seeking custody, we find this questionable given that he testified that the condition of the mother’s home has long been problematic and that, despite this, he relocated to Massachusetts and left both children in her care. Although … issues with the hot water heater were no doubt problematic, that matter was remedied prior to trial. Even more troubling, however, is the father’s strong opposition to the son changing schools because the son has difficulty with change, yet he feels it is in the son’s best interests to relocate him to Massachusetts away from the mother and the life he has established with her. Although relocation would certainly enhance the son’s life, as his living conditions would improve due to the father being more financially secure, this is only one factor in our analysis … . Finally, although not dispositive, given the advanced age of the son [born 2005], as well as testimony regarding how intelligent he is, we find that Family Court did not give proper weight to his wishes … . Matter of Daniel G. v Marie H., 2021 NY Slip Op 04178, Third Dept 7-1-21

 

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