Gutiy v. Gutiy, 40 A.D.3d 1155 (N.Y. App. Div. 2007). · Go Syfert
Gutiy v. Gutiy, 40 A.D.3d 1155 (N.Y. App. Div. 2007). Cases Citing This Book View Copy Cite
13 citation events (13 in the last 25 years) across 1 distinct court.
Strongest positive: Matter of Perestam v. Perestam (nyappdiv, 2016-07-07)
Top citers, strongest first. 9 distinct citers. How cited ↗
discussed Cited as authority (rule) Matter of Perestam v. Perestam
N.Y. App. Div. · 2016 · confidence medium
While this demonstrates her exclusion of the father from major decisions involving the children, there was ample evidence that the mother and her husband encouraged and would facilitate a relationship between the father and the children (see Matter of Bush v Lopez, 125 AD3d 1150, 1150-1151 [2015]; Matter of Gutiy v Gutiy, 40 AD3d 1155, 1156 [2007]).
discussed Cited as authority (rule) Sniffen v. Weygant
N.Y. App. Div. · 2011 · confidence medium
“The overriding concern when considering custody disputes, including those that involve relocation, is the best interests of the children” (Matter of Gutiy v Gutiy, 40 AD3d 1155, 1156 [2007] [citations omitted]).
discussed Cited as authority (rule) Belinda YY. v. Lee ZZ.
N.Y. App. Div. · 2010 · confidence medium
While the child’s wishes are not determinative, a child’s age and reasoning may render those wishes more probative and entitle them to greater consideration (see Matter of Gutiy v Gutiy, 40 AD3d 1155, 1156 [2007]; Matter of Carnese v Wiegert, 273 AD2d 554, 557 [2000]).
discussed Cited as authority (rule) McGovern v. McGovern (2×)
N.Y. App. Div. · 2009 · confidence medium
In view of the .unrefuted evidence that the father disparaged the mother and failed to attend to the son’s known medical needs, and the son’s poor academic performance and fear of the father’s seizure disorder, 3 we find ample evidence of a change in circumstances necessitating reconsideration of the son’s best interests (see Posporelis v Posporelis, 41 AD3d at 988 ; Matter of Filippelli v Chant, 40 AD3d 1221, 1222 [2007]; Matter of Gutiy v Gutiy, 40 AD3d 1155, 1156 [2007]; Matter of Shehata v Shehata, 31 AD3d 773, 774 [2006]). 4 Turning to the next step of the analysis, the primary co…
discussed Cited as authority (rule) Valenti v. Valenti
N.Y. App. Div. · 2008 · confidence medium
To the contrary, not only did the father provide compelling evidence for custody of all three children, but the Law Guardian also advocated that the two younger siblings be placed with the father and that keeping the siblings together would serve the children’s best interests (see Matter of Gutiy v Gutiy, 40 AD3d 1155, 1156 [2007]; Matter of Jelenic v Jelenic, 262 AD2d at 677 ).
discussed Cited as authority (rule) Passero v. Giordano
N.Y. App. Div. · 2008 · confidence medium
Additionally, her temper outbursts, her inappropriate use of corporal punishment (see Matter of Gutiy v Gutiy, 40 AD3d 1155, 1156 [2007]) and her practice of throwing away the children’s possessions without their consent or explanation on “clean out days” all amply reflect the mother’s failure to foster their emotional well-being.
discussed Cited as authority (rule) Brown v. Brown
N.Y. App. Div. · 2008 · confidence medium
Family Court did not, in rendering its decision, determine whether the mother had demonstrated by a preponderance of the evidence that the proposed relocation was, in fact, in the children’s best interests (see Matter of Tropea v Tropea, 87 NY2d 727, 742 [1996]; Matter of Gutiy v Gutiy, 40 AD3d 1155, 1156 [2007]; Matter of Winn v Cutting, 39 AD3d 1000, 1001 [2007]; Matter of Armstrong v Crout, 33 AD3d 1079, 1079-1080 [2006]).
discussed Cited as authority (rule) Mallory v. Jackson
N.Y. App. Div. · 2008 · confidence medium
In support of her petition to move the children to North Carolina, the mother was required to demonstrate by a preponderance of the evidence that the proposed relocation would be in the children’s best interests (see Matter of Tropea v Tropea, 87 NY2d 727, 742 [1996]; Matter of Gutiy v Gutiy, 40 AD3d 1155, 1156 [2007]; Matter of Winn v Cutting, 39 AD3d 1000, 1001 [2007]; Matter of Armstrong v Crout, 33 AD3d 1079, 1079-1080 [2006]).
discussed Cited "see, e.g." Gravelding v. Loper
N.Y. App. Div. · 2007 · signal: see also · confidence medium
The mother now appeals. 2 Initially, we note that there is no dispute that the mother’s move from Virginia to Alaska constituted a substantial change in circumstances (see Matter of Groover v Potter, 17 AD3d 718, 719 [2005]; see also Matter of Gutiy v Gutiy, 40 AD3d 1155, 1156 [2007]) and, accordingly, resolution of the petition to modify the existing custody order turned on whether such a modification was in the best interests of the children (see Matter of Brady v Schermerhorn, 25 AD3d 1037, 1038 [2006]; Matter of Meyer v Lerche, 24 AD3d 976, 976-977 [2005]; Matter of Musgrove v Bloom, 19 …
Retrieving the full opinion text from the archive…
In the Matter of Ivan Gutiy
v.
Lyubov Gutiy, (And Another Related Proceeding.)
Appellate Division of the Supreme Court of the State of New York.
May 3, 2007.
40 A.D.3d 1155
Lahtinen.
Cited by 9 opinions  |  Published
Lahtinen, J.

Appeal from an order of the Family Court of Tioga County (Argetsinger, J.), entered April 10, 2006, which, inter alia, granted respondent’s application, in two proceedings pursuant to Family Ct Act article 6, to modify a prior order of custody.

The parties, parents of seven children, separated in 2003 and custody proceedings ensued as to the five unemancipated children. During the pendency of those proceedings, respondent (hereinafter the mother) moved to New Jersey with the five children to be near her extended family. Petitioner (hereinafter the father) conceded that the two oldest of the five (born in 1987 and 1988) should stay with the mother, but he sought custody of the three youngest (born in 1991, 1993 and 1996) (hereinafter collectively referred to as the children). In December 2003, Family Court granted the parties joint custody of the children, with the mother having physical placement upon the condition that she return to Tioga County or a county contiguous thereto. She did not leave New Jersey and, accordingly, placement remained with the father.

In 2005, the oldest of the three children refused to return to the father following his summer break with the mother and he enrolled in school in New Jersey that fall. This prompted the father to file a violation petition against the mother. She responded with a petition (subsequently amended in December 2005) seeking modification of the prior custody order. Following a hearing, including Lincoln hearings with each of the three children, Family Court rendered a detailed written decision in which it dismissed the father’s violation petition and granted the mother’s application for physical placement of the children with her. The father appeals.

[*1156] The overriding concern when considering custody disputes, including those that involve relocation, is the best interests of the children (see Matter of Tropea v Tropea, 87 NY2d 727, 740-741 [1996]; Eschbach v Eschbach, 56 NY2d 167, 171 [1982]). A party seeking to modify an existing custody order must set forth a “sufficient change in circumstances, demonstrating a definite need for such modification to ensure the continued best interests of the child[ren]” (Matter of Goodfriend v Devletsah-Goodfriend, 29 AD3d 1041, 1042 [2006]; see Matter of Ciccone v Grassi, 31 AD3d 921, 922 [2006]), and there are numerous criteria that should be weighed in determining whether a change is warranted (see e.g. Matter of Kemp v Kemp, 19 AD3d 748, 750 [2005], lv denied 5 NY3d 707 [2005]; Kaczor v Kaczor, 12 AD3d 956, 958 [2004]). Similarly, relocation cases ultimately turn on the particular facts of each case, with a host of factors relevant in the analysis (see Matter of Tropea v Tropea, supra at 740-741; Matter of Smith v Hoover, 24 AD3d 1096, 1096-1097 [2005]). Family Court’s findings and determinations on these issues generally will not be disturbed on appeal if supported by a sound and substantial basis in the record (see Matter of Kemp v Kemp, supra at 750; Matter of Rutz v Carinci, 6 AD3d 992, 994 [2004]).

Here, Family Court’s decision is fully supported by the record. There was credible evidence that the father repeatedly made disparaging comments about the mother in the children’s presence and this had a detrimental effect on them. The mother, on the other hand, encouraged the children’s relationship with the father. While not dispositive, it is readily apparent that the children desire to live with their mother and the Law Guardian advocated that they be placed with her. A network of other family members, including the emancipated siblings, live near the mother in New Jersey. The mother, although struggling to learn English, has been able to locate employment that has a schedule similar to the children’s school day and she has a suitable home for the family. The father is unemployed and lives with his mother, who does most of the household chores. The father has used unduly severe discipline methods on the children. When the mother did not have placement of the children, she was nevertheless diligent in her visitation despite the fact that the father was consistently late in arriving at the meeting place between the residences. There was other proof raising serious concerns about the father’s parenting skills and the potential detrimental effect of those on the children. He elected not to testify, enabling the court to draw the strongest possible inferences against him (see Matter of Miosky v Miosky, 33 AD3d 1163, 1167 [2006]). A review of the record shows that the decision to modify the custody arrangement and permit relocation of the children was in the children’s best interests.

[*1157] Mercure, J.P., Peters, Spain and Rose, JJ., concur. Ordered that the order is affirmed, without costs.