Matter of Dukes v McPherson

2008 NY Slip Op 03791 [50 AD3d 1529]

April 25, 2008

Appellate Division, Fourth Department

As corrected through Wednesday, June 18, 2008

In the Matter of Ebony P. Dukes, Appellant, v Brian C. McPherson,Respondent.

—[*1]Timothy P. Donaher, Public Defender, Rochester (Grazina Myers of counsel), forpetitioner-appellant.

Charles Plovanich, Law Guardian, Rochester, for Brian J.i.m.

Appeal from an order of the Supreme Court, Monroe County (Elma A. Bellini, A.J.), enteredSeptember 18, 2006 in a proceeding pursuant to Family Court Act article 6. The order, inter alia,denied the petition seeking, inter alia, permission for the parties' son to relocate with petitioner toanother state.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: Petitioner mother appeals from an order denying her petition seeking, interalia, permission for the parties' son to relocate with her to Maryland. A party seeking relocationhas the burden of demonstrating, by a preponderance of the evidence, that the proposedrelocation is in the child's best interests (see Matter of Tropea v Tropea, 87 NY2d 727,741 [1996]; Matter of Jones vTarnawa, 26 AD3d 870, 871 [2006], lv denied 6 NY3d 714 [2006]). While therelocation of a child outside of the geographic area where the noncustodial parent resides is notpresumptively against the child's best interests, "the impact of the move on the relationshipbetween the child and the noncustodial parent will remain a central concern" (Tropea, 87NY2d at 739). Here, in denying that part of the mother's petition with respect to relocating,Supreme Court properly considered the factors set forth in Tropea, including "eachparent's reasons for seeking or opposing the move, the quality of the relationships between thechild and the custodial and noncustodial parents, the impact of the move on the quantity andquality of the child's future contact with the noncustodial parent, the degree to which thecustodial parent's and child's life may be enhanced economically, emotionally and educationallyby the move, and the feasibility of preserving the relationship between the noncustodial parentand child through suitable visitation arrangements" (id. at 740-741).Present—Hurlbutt, J.P., Martoche, Fahey, Green and Gorski, JJ.