Cunningham v. Sudduth

50 A.D.3d 1623, 857 N.Y.S.2d 388

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 25, 2008
• Status: Published

Opinion

Appeal from an order of the Family Court, Erie County (Sharon M. LoVallo, A.J.), entered October 25, 2007 in a proceeding pursuant to Family Court Act article 6. The order, among other things, awarded petitioner custody of the parties’ child.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs, and respondent is directed to return the child to petitioner at the expense of respondent within 10 days of the last day of the 2007-2008 school year.

Memorandum: Respondent mother appeals from an order granting the petition of petitioner father seeking custody of the parties’ child. Although the mother cross-petitioned for custody without seeking permission for the child to relocate with her to Orlando, Florida, she moved with the child to Orlando during the pendency of the proceeding. Family Court determined that the mother failed to establish that the child’s best interests were served by the relocation (see generally Matter of Tropea v Tropea, 87 NY2d 727, 740-741 [1996]). The court’s determination that the best interests of the child are instead served by granting the father’s petition “ ‘is based on careful weighing of appropriate factors . . . , including the court’s firsthand assessment of the character and credibility of the parties’ . . . , and it has a sound and substantial basis in the record” (Matter of Beman v Kellogg, 39 AD3d 1254, 1254-1255 [2007], lv denied 9 [2007]). Because the court’s order was stayed during the pendency of the appeal by an order of this Court, the child has remained with the mother. Thus, we direct the mother to return the child to the father at the expense of the mother within 10 days of the last day of the 2007-2008 school year. Present—Scudder, P.J., Martoche, Smith, Lunn and Peradotto, JJ.