Matter of Martinez v. Toole: Isolated Incidents Insufficient for Harassment Findings & Refined Standards for Relocation-Based Custody Modifications

1. Introduction

Matter of Martinez v. Toole (2025 NY Slip Op 03721)

This Second Department decision addresses two intertwined Family Court Act articles—Article 6 (custody/visitation) and Article 8 (family offense)—arising from the contentious parenting relationship between Efrain Martinez (father) and Stephanie Toole (mother).

Key issues before the Appellate Division included:

Whether the Family Court properly denied the mother’s petition to relocate the parties’ child to North Carolina and properly awarded sole legal and physical custody to the father.
Whether an isolated verbal confrontation during a custodial exchange constituted the family offense of harassment in the second degree, thereby justifying a two-year order of protection.

The Court ultimately affirmed the transfer of custody to the father but vacated both the harassment finding and the resulting order of protection. In doing so, it reconfirmed two doctrinal rules: (i) relocation petitions must be supported by a showing that the move is in the child’s best interests; and (ii) a single, isolated incident is insufficient to constitute harassment in the second degree under Penal Law §240.26(3).

2. Summary of the Judgment

Custody & Relocation: The court found a “sound and substantial basis” for shifting sole legal and physical custody to the father, citing the mother’s unilateral relocation, her failure to establish economic or educational necessity for the move, and the child’s stability in the father’s care.
Family Offense Petition: Reversing the Family Court, the Second Department held that the father did not meet his burden of proving harassment in the second degree by a fair preponderance because the alleged misconduct involved only an isolated verbal dispute.
Order of Protection: Because the harassment finding was vacated, the two-year order of protection issued against the mother was also reversed in its entirety.

3. Analysis

3.1 Precedents Cited

Matter of Morales v. Diaz, 214 AD3d 874 – Recited for the “change in circumstances” standard that triggers a best-interest analysis.
Matter of Heppler v. Oelsner, 217 AD3d 767;
Matter of Banks v. DeLeon, 174 AD3d 598 – Both underscoring the relocating parent’s burden to prove by a preponderance that relocation benefits the child.
Matter of Caravella v. Toale, 78 AD3d 828; Matter of Davis v. Perry, 235 AD3d 747 – For the “totality of circumstances” and best-interest factors.
Matter of Breval v. Martinez, 205 AD3d 805; Matter of Schade v. Kupferman, 188 AD3d 1218 – Both holding that a single incident cannot satisfy harassment in the second degree, directly controlling the family-offense aspect.
Matter of Morgan v. Eckles, 214 AD3d 983; Matter of Pavon v. Perez, 213 AD3d 674 – Demonstrating circumstances where relocation was denied for failing to enhance the child’s quality of life.

The Second Department relied heavily on Breval and Schade, making clear that Petitioners must demonstrate a course of conduct or repeated acts when alleging harassment in the second degree. For relocation and custody, the Court reiterated the familiar but stringent best-interest framework established by the above relocation line of cases.

3.2 Legal Reasoning

Custody & Relocation

“A parent seeking to relocate … bears the burden of establishing by a preponderance of the evidence that the proposed move would be in the child’s best interests.” — Heppler v. Oelsner, quoting Banks v. DeLeon

The Court walked through the Tropea factors (from Matter of Tropea v. Tropea, 87 NY2d 727), though not expressly cited, and found:

No showing that the relocation was economically indispensable.
Insufficient evidence that North Carolina would offer superior educational or social opportunities.
Substantial risk of impairing the child’s close relationship with the father.
The father had meanwhile provided a stable, satisfactory environment.

Further, the mother had already relocated without court permission, underscoring a change in circumstances and casting doubt on her willingness to foster the father-child relationship. Collectively, these elements justified awarding sole custody to the father.

Family Offense / Harassment in the Second Degree

Under Penal Law §240.26(3), harassment requires a course of conduct or repeated acts intended to alarm or seriously annoy. The Court emphasized:

An isolated verbal dispute, even if unpleasant, is insufficient as a matter of law.
Without such course of conduct, the petitioner fails the “fair preponderance of the evidence” threshold mandated by Family Court Act §832.

Therefore, the Court vacated both the harassment finding and the derivative order of protection.

3.3 Impact of the Judgment

Elevated Evidentiary Expectations in Family Offense Proceedings
The decision serves as a cautionary tale: Family Courts must demand proof of repeated misconduct before issuing protective orders grounded in harassment claims. Practitioners will need to assemble multiple, discrete acts rather than rely on singular flare-ups.
Relocation-Driven Custody Disputes
The Court’s analysis refines how parents and counsel should frame relocation arguments—mere preference or speculative benefits will fail. Detailed, child-centered evidence demonstrating economic necessity, educational advantages, and minimized parental-relationship disruption is indispensable.
Procedural Discipline
The mother’s failure to appear and unauthorized relocation were treated as significant credibility and best-interest factors, foreshadowing stricter judicial intolerance for procedural noncompliance in custody contexts.

4. Complex Concepts Simplified

“Sound and Substantial Basis”: A deferential appellate standard: if the record contains credible evidence supporting the Family Court’s conclusion, the decision will stand.
Preponderance of the Evidence: Simply put, “more likely than not.” In family offense cases, the petitioner’s proof must tip the scale—however slightly—in their favor.
Harassment in the Second Degree (Penal Law §240.26[3]): Requires repeated acts or a sustained pattern aimed at seriously annoying or alarming the victim. One incident almost never suffices.
Order of Protection: A court directive restraining a respondent from specific conduct (e.g., harassment). Issuance requires a predicate family offense finding.
Relocation Factors (from Tropea): Economic necessity, educational/social enhancement, impact on non-relocating parent’s contact, stability, and child’s preferences.

5. Conclusion

In Matter of Martinez v. Toole, the Second Department reinforces two critical pillars of New York family law:

A single confrontation, without more, cannot ground a harassment finding or an order of protection (Breval/Schade rule reaffirmed).
Relocation efforts that fail to concretely advance the child’s welfare—and potentially undermine the other parent’s bond—will be rejected, even at the cost of transferring full custody.

By vacating the order of protection and simultaneously upholding the father’s custody award, the Court strikes a balance between protecting parties from real abuse and preventing the over-extension of protective orders, while placing the child’s stability at the forefront of relocation disputes. Future litigants must heed this dual message: present a robust factual record for any alleged family offense, and craft relocation petitions with meticulous, child-centric evidence lest the move jeopardize custodial standing.