IN RE: Sharlene Wallace (2011)

Argued-February 24, 2011

DECISION & ORDER

In a custody proceeding pursuant to Family Court Act article 6, the attorney for the child appeals from so much of an order of the Family Court, Suffolk County (Boggio, Ct.Atty.Ref.), dated June 30, 2009, as, after a hearing, denied the mother's petition to award her sole custody of the parties' child and for permission to relocate with the child to the State of Arkansas, and denied the motion of the attorney for the child to, inter alia, reopen the hearing.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

The Family Court's finding that there was no change in circumstances warranting a modification of the parties' custody agreement (see Eschbach v. Eschbach, 56 N.Y.2d 167, 171;  Matter of Peralta v. Irrizary, 76 AD3d 561, 562;  Matter of Leichter-Kessler v. Kessler, 71 AD3d 1148, 1148-1149;  Matter of Arduino v. Ayuso, 70 AD3d 682), has a sound and substantial basis in the record and will therefore not be disturbed (see Matter of Jones v. Leppert, 75 AD3d 552;  Matter of Summer A., 49 AD3d 722,, 726;  Cuccurullo v. Cuccurullo, 21 AD3d 983, 984).   Likewise, the Family Court properly determined that the proposed relocation of the child to the State of Arkansas was not in the child's best interests (see Matter of Tropea v. Tropea, 87 N.Y.2d 727, 739-741;  Matter of Huston v. Jones, 252 A.D.2d 502, 503;  Mascola v. Mascola, 251 A.D.2d 414, 415;  cf.  Matter of Fegadel v. Anderson, 40 AD3d 1091, 1092).

The Family Court did not improvidently exercise its discretion in denying the motion by the attorney for the child to reopen the hearing, on the basis of purported new evidence (see Matter of Russell v. Del Castillo, 181 A.D.2d 680, 681;  Matter of Ashley B., 2 AD3d 1402, 1402-1403).   The alleged new evidence was either cumulative in nature or would not have produced a different result (see Matter of Jonathan B., 11 AD3d 290;  Matter of Karen F., 208 A.D.2d 994, 996).

RIVERA, J.P., DILLON, HALL and ROMAN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court