Munson v. Fanning, 84 A.D.3d 1483 (N.Y. App. Div. 2011). · Go Syfert
Munson v. Fanning, 84 A.D.3d 1483 (N.Y. App. Div. 2011). Cases Citing This Book View Copy Cite
40 citation events (40 in the last 25 years) across 1 distinct court.
Strongest positive: Matter of James XX. v. Tracey YY. (nyappdiv, 2017-01-05)
Treatment trajectory · 2011 → 2026 · click a year to view as-of
2011 2018 2026
Top citers, strongest first. 28 distinct citers. How cited ↗
discussed Cited as authority (rule) Matter of James XX. v. Tracey YY.
N.Y. App. Div. · 2017 · confidence medium
Family Court did not abuse its discretion by determining that the mother’s admitted failure to provide the father with advance notice of a single dental appointment did not constitute a willful violation, given her explanation that she believed that the child had notified the father of such appointment (see Matter of *1039 Munson v Fanning, 84 AD3d 1483, 1484 [2011]; compare Matter of Aurelia v Aurelia, 56 AD3d 963 , 964 [2008]).
discussed Cited as authority (rule) Matter of Gates v. Petosa
N.Y. App. Div. · 2015 · confidence medium
As Family Court’s determination that relocating the children would not serve their best interests has sound evidentiary support, we see no reason to reverse it (see Matter of Cole v Reynolds, 110 AD3d 1273, 1276 [2013]; Matter of Rizzo v Pizzo, 94 AD3d 1351, 1353 [2012]; Matter of Munson v Fanning, 84 AD3d 1483, 1484 [2011]).
discussed Cited as authority (rule) Matter of Julie E. v. David E.
N.Y. App. Div. · 2015 · confidence medium
Considering all of the relevant factors and based primarily on the significant harmful impact that a move would have upon the children’s well-established relationships with the father and his family in New York, we conclude that the mother did not meet her burden of demonstrating that relocation to Texas would be in their best interests (see Matter of Cowper v Vasquez, 121 AD3d 1341, 1343 [2014]; Matter of Jones v Soriano, 117 AD3d 1350, 1351-1352 [2014], lv denied 24 NY3d 901 [2014]; Rose v Buck, 103 AD3d 957, 960-961 [2013]; Matter of Munson v Fanning, 84 AD3d 1483, 1485 [2011]).
discussed Cited as authority (rule) Cowper v. Vasquez
N.Y. App. Div. · 2014 · confidence medium
While mindful that the mother has been the primary caregiver, we reject her assertion that Family Court’s determination was not supported by a sound and substantial basis in the record (see Matter of Bracy v Bracy, 116 AD3d 1172, 1174 [2014]; Matter of Williams v Williams, 90 AD3d 1343, 1345 [2011]; Matter of Kirshy-Stallworth v Chapman, 90 AD3d 1189, 1192 [2011]; Matter of Munson v Fanning, 84 AD3d 1483, 1485 [2011]).
discussed Cited as authority (rule) Cowper v. Vasquez
N.Y. App. Div. · 2014 · confidence medium
While mindful that the mother has been the primary caregiver, we reject her assertion that Family Court’s determination was not supported by a sound and substantial basis in the record (see Matter of Bracy v Bracy, 116 AD3d 1172, 1174 [2014]; Matter of Williams v Williams, 90 AD3d 1343, 1345 [2011]; Matter of Kirshy-Stallworth v Chapman, 90 AD3d 1189, 1192 [2011]; Matter of Munson v Fanning, 84 AD3d 1483, 1485 [2011]).
discussed Cited as authority (rule) MatterofCowpervVasquez
N.Y. App. Div. · 2014 · confidence medium
While mindful that the mother has been the primary caregiver, we reject her assertion that Family Court's determination was not supported by a sound and substantial basis in the record (see Matter of Bracy v Bracy, 116 AD3d 1172, 1174 [2014]; Matter of Williams v Williams, 90 AD3d 1343, 1345 [2011]; Matter of Kirshy-Stallworth v Chapman, 90 AD3d 1189, 1192 [2011]; Matter of Munson v Fanning, 84 AD3d 1483, 1485 [2011]).
discussed Cited as authority (rule) Seeley v. Seeley
N.Y. App. Div. · 2014 · confidence medium
As the court’s conclusion denying relocation is supported by a sound and substantial basis in the record, we decline to disturb it (see Rose v Buck, 103 AD3d 957, 960 [2013]; Matter of Pizzo v Pizzo, 94 AD3d 1351, 1353 [2012]; Matter of Munson v Fanning, 84 AD3d 1483, 1485 [2011]).
discussed Cited as authority (rule) Seeley v. Seeley
N.Y. App. Div. · 2014 · confidence medium
As the court’s conclusion denying relocation is supported by a sound and substantial basis in the record, we decline to disturb it (see Rose v Buck, 103 AD3d 957, 960 [2013]; Matter of Pizzo v Pizzo, 94 AD3d 1351, 1353 [2012]; Matter of Munson v Fanning, 84 AD3d 1483, 1485 [2011]).
discussed Cited as authority (rule) MatterofSeeleyvSeeley
N.Y. App. Div. · 2014 · confidence medium
As the court's conclusion denying relocation is supported by a sound and substantial basis in the record, we decline to disturb it (see Matter of Rose v Buck, 103 AD3d 957, 960 [2013]; Matter of Pizzo v Pizzo, 94 AD3d 1351, 1353 [2012]; Matter of Munson v Fanning, 84 AD3d 1483, 1485 [2011]).
discussed Cited as authority (rule) Jones v. Soriano
N.Y. App. Div. · 2014 · confidence medium
Furthermore, the record supports Family Court’s conclusion that relocation would have a negative impact on the quality and quantity of the child’s future contact with the father, particularly in light of the parties’ limited resources (see Rose v Buck, 103 AD3d at 960-961; Matter of Munson v Fanning, 84 AD3d 1483, 1485 [2011]).
discussed Cited as authority (rule) Jones v. Soriano
N.Y. App. Div. · 2014 · confidence medium
Furthermore, the record supports Family Court’s conclusion that relocation would have a negative impact on the quality and quantity of the child’s future contact with the father, particularly in light of the parties’ limited resources (see Rose v Buck, 103 AD3d at 960-961; Matter of Munson v Fanning, 84 AD3d 1483, 1485 [2011]).
discussed Cited as authority (rule) Norback v. Norback
N.Y. App. Div. · 2014 · confidence medium
The threshold determination in a relocation proceeding is whether the proposed relocation would be in the best interests of the children (see Matter of Shirley v Shirley, 101 AD3d 1391, 1392 [2012]; Matter of Munson v Fanning, 84 AD3d 1483, 1484 [2011]).
discussed Cited as authority (rule) Norback v. Norback
N.Y. App. Div. · 2014 · confidence medium
The threshold determination in a relocation proceeding is whether the proposed relocation would be in the best interests of the children (see Matter of Shirley v Shirley, 101 AD3d 1391, 1392 [2012]; Matter of Munson v Fanning, 84 AD3d 1483, 1484 [2011]).
discussed Cited as authority (rule) Cole v. Reynolds
N.Y. App. Div. · 2013 · confidence medium
Family Court must consider a number of relevant factors in making this determination, including “ ‘each parent’s reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the child’s future contact with the [nonmoving] parent, the degree to which the [moving] parent’s and child’s life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the [nonmoving] parent and child thro…
discussed Cited as authority (rule) Cole v. Reynolds
N.Y. App. Div. · 2013 · confidence medium
Family Court must consider a number of relevant factors in making this determination, including “ ‘each parent’s reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the child’s future contact with the [nonmoving] parent, the degree to which the [moving] parent’s and child’s life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the [nonmoving] parent and child thro…
discussed Cited as authority (rule) Batchelder v. BonHotel
N.Y. App. Div. · 2013 · confidence medium
As the party seeking to relocate, the mother bore the burden of proving by a preponderance of the credible evidence that the proposed relocation would be in the child’s best interests (see Matter of Shirley v Shirley, 101 AD3d 1391, 1392 [2012]; Matter of Munson v Fanning, 84 AD3d 1483, 1484 [2011]; Matter of Sofranko v Stefan, 80 AD3d at 815 ).
discussed Cited as authority (rule) Batchelder v. BonHotel
N.Y. App. Div. · 2013 · confidence medium
As the party seeking to relocate, the mother bore the burden of proving by a preponderance of the credible evidence that the proposed relocation would be in the child’s best interests (see Matter of Shirley v Shirley, 101 AD3d 1391, 1392 [2012]; Matter of Munson v Fanning, 84 AD3d 1483, 1484 [2011]; Matter of Sofranko v Stefan, 80 AD3d at 815 ).
discussed Cited as authority (rule) Scott VV. v. Joy VV.
N.Y. App. Div. · 2013 · confidence medium
Considering the totality of the circumstances, we find a sound and substantial basis for Supreme Court’s determination that permitting the child to relocate to California would not be in her best interests (see Matter of Feathers v Feathers, 95 AD3d at 1623-1624; Matter of Pizzo v Pizzo, 94 AD3d at 1353 ; Matter of Scheffey-Hohle v Durfee, 90 AD3d at 1425-1429; Matter of Munson v Fanning, 84 AD3d 1483, 1484-1485 [2011]; Matter of Mallory v Jackson, 51 AD3d 1088, 1090 [2008], lv denied 11 NY3d 705 [2008]).
discussed Cited as authority (rule) Scott VV. v. Joy VV.
N.Y. App. Div. · 2013 · confidence medium
Considering the totality of the circumstances, we find a sound and substantial basis for Supreme Court’s determination that permitting the child to relocate to California would not be in her best interests (see Matter of Feathers v Feathers, 95 AD3d at 1623-1624; Matter of Pizzo v Pizzo, 94 AD3d at 1353 ; Matter of Scheffey-Hohle v Durfee, 90 AD3d at 1425-1429; Matter of Munson v Fanning, 84 AD3d 1483, 1484-1485 [2011]; Matter of Mallory v Jackson, 51 AD3d 1088, 1090 [2008], lv denied 11 NY3d 705 [2008]).
discussed Cited as authority (rule) Rose v. Buck
N.Y. App. Div. · 2013 · confidence medium
As the party seeking to relocate, the mother bore the burden of establishing by a preponderance of the credible evidence that the proposed relocation would be in the child’s best interests (see Matter of Kirshy-Stallworth v Chapman, 90 AD3d 1189, 1190 [2011]; Matter of Munson v Fanning, 84 AD3d 1483, 1484 [2011]; Matter of Sofranko v Stefan, 80 AD3d 814, 815 [2011]).
discussed Cited as authority (rule) Rose v. Buck
N.Y. App. Div. · 2013 · confidence medium
As the party seeking to relocate, the mother bore the burden of establishing by a preponderance of the credible evidence that the proposed relocation would be in the child’s best interests (see Matter of Kirshy-Stallworth v Chapman, 90 AD3d 1189, 1190 [2011]; Matter of Munson v Fanning, 84 AD3d 1483, 1484 [2011]; Matter of Sofranko v Stefan, 80 AD3d 814, 815 [2011]).
discussed Cited as authority (rule) Weber v. Weber
N.Y. App. Div. · 2012 · signal: cf. · confidence medium
Given the totality of the circumstances, including the economic enhancement for the child and greater job stability for the father that would result from the move, as well as the child’s opportunity to bond with his paternal extended family while still enjoying regular and meaningful contact during long visitation periods with the mother, we conclude that a sound and substantial basis existed for Family Court’s determination that the proposed relocation would be in the child’s best interests (see Matter of Vargas v Dixon, 78 AD3d 1431, 1432-1433 [2010]; Matter of Winston v Gates, 64 AD3d…
discussed Cited as authority (rule) Weber v. Weber
N.Y. App. Div. · 2012 · signal: cf. · confidence medium
Given the totality of the circumstances, including the economic enhancement for the child and greater job stability for the father that would result from the move, as well as the child’s opportunity to bond with his paternal extended family while still enjoying regular and meaningful contact during long visitation periods with the mother, we conclude that a sound and substantial basis existed for Family Court’s determination that the proposed relocation would be in the child’s best interests (see Matter of Vargas v Dixon, 78 AD3d 1431, 1432-1433 [2010]; Matter of Winston v Gates, 64 AD3d…
discussed Cited as authority (rule) Feathers v. Feathers
N.Y. App. Div. · 2012 · confidence medium
The mother, as the party seeking to relocate, had the burden to establish by a preponderance of the evidence that her proposed move would be in the children’s best interests (see Matter of Williams v Williams, 90 AD3d 1343, 1344 [2011]; Matter of Munson v Fanning, 84 AD3d 1483, 1484 [2011]).
discussed Cited as authority (rule) Feathers v. Feathers
N.Y. App. Div. · 2012 · confidence medium
The mother, as the party seeking to relocate, had the burden to establish by a preponderance of the evidence that her proposed move would be in the children’s best interests (see Matter of Williams v Williams, 90 AD3d 1343, 1344 [2011]; Matter of Munson v Fanning, 84 AD3d 1483, 1484 [2011]).
discussed Cited as authority (rule) Pizzo v. Pizzo
N.Y. App. Div. · 2012 · confidence medium
Based on the totality of the circumstances, including the mother’s acknowledgment that the father is a capable and nurturing parent, and the resulting stability afforded to the children by remaining in the marital residence and their school, we find a sound and substantial basis for Family Court’s determination denying the mother’s petition to relocate the children (see Matter of Kirshy-Stallworth v Chapman, 90 AD3d at 1191-1192; Matter of Munson v Fanning, 84 AD3d 1483, 1484 [2011]; Matter of Sofranko v Stefan, 80 AD3d at 815 ).
discussed Cited as authority (rule) Scheffey-Hohle v. Durfee
N.Y. App. Div. · 2011 · confidence medium
As the party seeking to relocate, the mother bore the burden of establishing by a preponderance of the credible evidence that the proposed relocation would be in the child’s best interest (see Matter of Kirshy-Stallworth v Chapman, 90 AD3d 1189, 1190 [2011]; Matter of Munson v Fanning, 84 AD3d 1483, 1484 [2011]; Matter of Sofranko v Stefan, 80 AD3d 814, 815 [2011]).
discussed Cited as authority (rule) Williams v. Williams
N.Y. App. Div. · 2011 · confidence medium
As the party seeking to relocate, the mother bore the burden of demonstrating by a preponderance of the credible evidence that the proposed move would be in the child’s best interest (see Matter of Munson v Fanning, 84 AD3d 1483, 1484 [2011]; Matter of Sofranko v Stefan, 80 AD3d 814, 815 [2011]).
Retrieving the full opinion text from the archive…
In the Matter of Stacia Munson, Appellant-Respondent
v.
Thomas Fanning, (And Another Related Proceeding.)
Appellate Division of the Supreme Court of the State of New York.
May 5, 2011.
84 A.D.3d 1483
Kavanagh.
Cited by 28 opinions  |  Published
Kavanagh, J.

Cross appeals from an order of the Family Court of Saratoga County (Hall, J.), entered March 23, 2010, which, among other things, dismissed petitioner’s application, in two proceedings pursuant to Family Ct Act article 6, to modify a prior order of custody.

Petitioner (hereinafter the mother) and respondent (hereinafter the father) have a daughter, who was born in 1999 after they had separated and ended their marriage. In February 2001, the parties were awarded joint custody of the child, with the mother having physical custody and the father extensive visitation. In October 2009, the mother filed an application seeking to hold the father in contempt for violating a provision of the custody order that prohibited either party from smoking in the child’s presence, or allowing any third party to do so. At the same time, the mother also sought sole custody of the child and permission to move with the child to California. The father objected to the mother taking the child to reside in California[*1484] and claimed that he did not willfully violate the prohibition contained in the order barring smoking in the child’s presence. After a hearing, Family Court dismissed the mother’s applications, including her request to relocate with the child, but issued a revised visitation schedule that allowed her to take the child to California for extensive time periods to be with her new husband, who, because of a new job, had relocated there. Both the mother and father now appeal.

The mother argues that since the father admitted to smoking in his car while the child was present and in the bedroom of his house while she was in his home, Family Court erred by not holding him in contempt for willfully violating its order (see Matter of Holland v Holland, 80 AD3d 807, 808 [2011]; Matter of Cobane v Cobane, 57 AD3d 1320, 1322-1323 [2008], lv denied 12 NY3d 706 [2009]). The father did admit to smoking in the car while the child was present, but stated that it only happened on a single occasion and claimed never to have done so again. In addition, while he acknowledged smoking in his bedroom, he claimed not to have known that smoking in another area of the house where the child was not present constituted a violation of the court’s order. On these facts, we cannot conclude that Family Court abused its discretion in finding that the father did not willfully violate the custody order (see Matter of Omahen v Omahen, 64 AD3d 975, 977 [2009]).

We also see no reason to disturb Family Court’s order denying the mother’s request that she be permitted to relocate with the child to California. The mother bore the burden of proving by a preponderance of the credible evidence that such a move was in the child’s best interests (see Matter of Solomon v Long, 68 AD3d 1467, 1469 [2009]). The factors to be considered in making such a determination include “each parent’s reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the child’s future contact with the noncustodial parent, the degree to which the custodial parent’s and child’s life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements” (Matter of Tropea v Tropea, 87 NY2d 727, 740-741 [1996]; see DeLorenzo v DeLorenzo, 81 AD3d 1110, 1111-1112 [2011]; Matter of Vargas v Dixon, 78 AD3d 1431, 1432-1433 [2010]). Here, certain factors weigh in favor of relocation — the mother has been the child’s primary caregiver, the child, who wants to be with the mother in California, has developed a healthy relation[*1485] ship with the mother’s new husband, as well as her other children, all of whom were to reside in California, and the mother’s new husband has a new job in California that would allow her to stay at home and raise her children.[1] However, all concede that the father has developed a strong relationship with the child and has made every effort to become an important part of her life, and there can be no doubt that the proposed move will have a significant and potentially adverse impact on that relationship and seriously jeopardize it. Moreover, the move would also affect the child’s relationship with the father’s fiancée, their children, as well as other members of her extended family who live in the area.[2] Given this reality, there is ample support in the record for Family Court’s determination that a move to California was not in the child’s best interests (see Matter of Solomon v Long, 68 AD3d at 1468; Matter of Dickerson v Robenstein, 68 AD3d 1179, 1180-1181 [2009]).

We reject the father’s claim that Family Court was without authority to modify the visitation schedule that was in place when the mother made this application to take into account how her circumstances had been affected by her new husband having to move to California. Given that the mother had indicated that she would not move to California if not allowed to relocate there with the child, Family Court had the authority in the context of this proceeding to find that her husband’s employment situation in California constituted a significant change in circumstance which, in turn, required a modification of the existing visitation schedule to meet the child’s best interests (see Matter of Kowatch v Johnson, 68 AD3d 1493, 1495 [2009], lv denied 14 NY3d 704 [2010]; see generally Matter of Heintz v Heintz, 28 AD3d 1154, 1154-1155 [2006]). That being said, the changes made by the court — allowing the mother to travel to California with the child to visit the stepfather for the entire summer and for extended periods during recesses that occur during the academic year — were extensive and made without a sufficient factual basis in the record. While a change in the existing visitation schedule is warranted, we are unable, on this record, to determine whether the new schedule as ordered by the court is in the child’s best interests.[3] Therefore, we remit for further proceedings in this regard.

[*1486] Mercure, J.E, Lahtinen, Malone Jr. and Garry, JJ., concur. Ordered that the order is modified, on the law, without costs, by reversing so much thereof as modified the visitation schedule; matter remitted to the Family Court of Saratoga County for further proceedings not inconsistent with this Court’s decision; and, as so modified, affirmed.

1

The attorney for the child supported the mother’s relocation application.

2

We agree with the mother that Family Court improperly considered how the move would affect her son, who is not the father’s child and whose relationship with the father was not an issue in these proceedings.

3

In this regard, we note that the child testified both in court and during a Lincoln hearing.