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Rauch v. Keller

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


October 1, 2010

IN THE MATTER OF SAHRINA H. RAUCH, PETITIONER-APPELLANT,
v.
BRIAN W. KELLER, RESPONDENT-RESPONDENT.

Appeal from an order of the Family Court, Onondaga County (George M. Raus, Jr., R.), entered August 28, 2009 in a proceeding pursuant to Family Court Act article 6. The order, among other things, dismissed the petition for modification of a custody order to allow petitioner to relocate with subject child to another state.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PRESENT: FAHEY, J.P., CARNI, LINDLEY, GREEN, AND GORSKI, JJ.

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

Memorandum

Petitioner mother appeals from an order granting the motion of respondent father and the Attorney for the Child to dismiss her petition seeking permission for the parties' child to relocate with her to Florida. We affirm. As the parent seeking permission to relocate with the child, the mother had the burden of establishing by a preponderance of the evidence that the proposed relocation was in the child's best interests (see Matter of Tropea v Tropea, 87 NY2d 727, 741; Matter of Dukes v McPherson, 50 AD3d 1529), and the determination that she failed to meet that burden has a sound and substantial basis in the record (see Matter of Cunningham v Sudduth, 50 AD3d 1623). Although the motion to dismiss was made before completion of the hearing on the petition, the mother had finished testifying on direct examination and indicated that she had no further proof to offer.

20101001

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