| Matter of Harding v Harding |
| 2011 NY Slip Op 04249 [84 AD3d 1086] |
| May 17, 2011 |
| Appellate Division, Second Department |
| In the Matter of M. Montelle Harding,Respondent, v William D. Harding, Appellant. |
—[*1] Cynthia G. Kasnia, Poughkeepsie, N.Y., for respondent. Kelly S. Myers, Hyde Park, N.Y., attorney for the child.
In a child custody proceeding pursuant to Family Court Act article 6, the father appeals (1)from a decision of the Family Court, Dutchess County (Posner, J.), dated March 5, 2010, madeafter a hearing, and (2), as limited by his brief, from so much of an order of the same court, alsodated March 5, 2010, as, upon the decision, granted that branch of the mother's petition whichwas for permission to relocate with the subject child to North Carolina.
Ordered that the appeal from the decision is dismissed, without costs or disbursements, as noappeal lies from a decision (see Schicchi v J.A. Green Constr. Corp., 100 AD2d 509[1984]); and it is further,
Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.
"To modify an existing custody arrangement, there must be a showing of a change incircumstances, and the determination of the Family Court must have a sound and substantialbasis in the record" (Matter of Englese vStrauss, 83 AD3d 705, 706 [2011]; see Matter of Caravella v Toale, 78 AD3d 828 [2010]). Since themother was seeking permission to relocate, she bore the burden of proof by a preponderance ofthe evidence (see Matter of Englese v Strauss, 83 AD3d 705 [2011]; Bjornson v Bjornson, 38 AD3d816, 816-817 [2007]). " 'When reviewing a custodial parent's request to relocate, the court'sprimary focus must be on the best interests of the child' " (Matter of Garcia v Becerra, 68 AD3d 864, 865 [2009], quoting Matter of Giraldo v Gomez, 49 AD3d645, 645 [2008]; see Matter of Tropea v Tropea, 87 NY2d 727, 739 [1996]; Matter of Said v Said, 61 AD3d879, 881 [2009]). Moreover, "[s]ince the Family Court's . . . determination islargely dependent upon an assessment of the credibility of the witnesses and upon the character,temperament, and sincerity of the parents, its determination should not be disturbed unless itlacks a sound and substantial basis in the record" (Matter of Giraldo v Gomez, 49 AD3dat 645 [internal quotation marks omitted]; see Matter of Grossman v Grossman, 5 AD3d 486, 486-487[2004]).[*2]
Here, the Family Court, upon weighing the appropriatefactors set forth in Matter of Tropea v Tropea (87 NY2d at 740-741), properlydetermined that the mother established by a preponderance of the evidence that her relocationwith the child to North Carolina was in the child's best interests (see Matter of Englese v Strauss, 83AD3d 705 [2011]; Matter of Garcia v Becerra, 68 AD3d at 865). Contrary to thefather's contention, the Family Court's determination does not lack a sound and substantial basisin the record. Angiolillo, J.P., Dickerson, Belen and Sgroi, JJ., concur.