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

178
CAF 14-01937
PRESENT: CARNI, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.


IN THE MATTER OF NICHOLE M. HIRSCHMAN,
PETITIONER-APPELLANT,

                    V                             MEMORANDUM AND ORDER

PATRICK R. MCFADDEN, RESPONDENT-RESPONDENT.


CHARLES J. GREENBERG, AMHERST, FOR PETITIONER-APPELLANT.

JACQUELINE M. GRASSO, ATTORNEY FOR THE CHILD, BATAVIA.


     Appeal from an order of the Family Court, Genesee County (Eric R.
Adams, J.), entered October 1, 2014 in a proceeding pursuant to Family
Court Act article 6. The order dismissed the petition.

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

     Memorandum: In this proceeding pursuant to Family Court Act
article 6, petitioner mother appeals from an order that dismissed her
petition seeking permission to relocate with the parties’ child to
Florida. We affirm. Based on our review of the evidence at the
fact-finding hearing, we conclude that Family Court properly
considered the factors set forth in Matter of Tropea v Tropea (87 NY2d
727, 740-741) in determining that the mother failed to meet her burden
of establishing by a preponderance of the evidence that the proposed
relocation is in the child’s best interests, and we further conclude
that the court’s determination has “ ‘a sound and substantial basis in
the record’ ” (Matter of Hill v Flynn, 125 AD3d 1433, 1434, lv denied
25 NY3d 910). The court properly determined that the mother “failed
to establish that the child’s life would ‘be enhanced economically,
emotionally and educationally’ by the proposed relocation” (id.).
Indeed, although the mother asserted financial reasons for the
proposed relocation, she failed to present any proof of her purported
job offer and, moreover, she failed to establish that any employment
she was offered in Florida would be anything more than temporary (see
id.; Matter of Yaddow v Bianco, 115 AD3d 1338, 1339). In addition,
while the mother testified that the child could receive a superior
education upon relocation, “she failed to offer any proof from which
[the court] reasonably could conclude that the [Florida] school system
was a significant improvement over the school system in [New York]”
(Matter of Batchelder v BonHotel, 106 AD3d 1395, 1397; see Matter of
Guiffrida v Adams, 277 AD2d 948, 948). In addition, compared to the
support the mother and the child receive by residing with the maternal
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                                                         CAF 14-01937

grandmother in New York, we conclude that the mother failed to
establish that she and the child would receive similar support in
Florida, where the nearest family member would be over an hour away
(see Matter of Anne S. v Peter S., 92 AD3d 483, 484; Matter of Webb v
Aaron, 79 AD3d 1761, 1761-1762). Finally, the court considered the
fact that respondent father had failed to fully avail himself of his
visitation rights, but the court nevertheless properly concluded that
the mother lacked a feasible plan for preserving the relationship
between the father and the child inasmuch as her proposed visitation
arrangement upon relocation was unlikely to materialize given her
uncertain employment and the lack of financial resources necessary to
facilitate the child’s transportation to New York (see generally
Tropea, 87 NY2d at 740-741; Matter of Kirshy-Stallworth v Chapman, 90
AD3d 1189, 1191-1192).




Entered:   March 18, 2016                      Frances E. Cafarell
                                               Clerk of the Court
