A mother’s application to relocate with her children to Arizona was properly dismissed where she failed to establish that the relocation would enhance the children’s lives economically or emotionally. In its January 29, 2004 decision in Christy v. Christy, the Second Department affirmed the order of Suffolk County Family Court Attorney Referee Roseann Orlando that had granted the father’s motion to dismiss the mother’s petition at the conclusion of the mother’s presentation of evidence.

The appellate court noted the general rule that on such a motion to dismiss a petition (as opposed to a ruling after both sides have presented all their evidence), the facts must be viewed in the light most favorable to the petitioner, accepting her proof as true and affording her every favorable inference that reasonably can be drawn therefrom.

Here, the mother failed to establish, prima facie, that her proposal to relocate to Arizona with the subject children was in their best interest. The mother failed to prove that the move would enhance the children’s lives economically. The mother was currently living in the home of her second husband together with six children, three from each of their prior marriages. The mother, an unemployed educator, testified that she had received a job offer in Arizona, contingent on her obtaining reciprocal certification. She, however, did not testify about what salary she expected to earn. Further, the mother’s second husband, who had a secure job in New York, annually, did not have a job waiting for him in Arizona.

Without proof of the second husband’s potential job prospects in Arizona, or proof of the mother’s earning potential as a teacher in Arizona, any contention that the children would enjoy a higher quality of life there is speculative.

The mother also provided no evidence that the lives of the subject children would be enhanced emotionally by the move.

There was no testimony regarding how the children felt about the proposed move, in terms of how they believed it would affect their relationship with their father or any of their friends. In fact, there was no evidence as to whether the subject children even desired to move.

Moreover, if relocation of the subject children across the country were permitted, the frequency of contacts between them and the father would be significantly reduced. He currently visited with the children three weekends a month.

The mother failed to show that the relationship between the subject children and the father could be preserved through suitable visitation arrangements, particularly given her financial circumstances.

Katherine M. Saciolo, of Bryan L. Salamone & Associates, P.C., of Melville, represented the mother.
Alan K. Hirschhorn, of Golden Hirschhorn LLP, of Garden City, represented the father. Beth A. Rosenthal, of North Babylon, N.Y., was Attorney for the Children.