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As our society becomes more mobile in where we choose to live and work, an issue that is becoming increasingly common during divorce and custody litigation is when one parent seeks to relocate with one or more of the parties’ children. Although many states have requirements regarding the non-custodial parent’s rights with respect to relocating a child, New York is particularly strict in this matter.
Typically, the issue of relocation comes up when the custodial parent, whether they have sole or joint custody of the child or children, wants to move a certain distance away from the other parent. This can be anywhere from more than an hour and a half away to several thousand miles. Usually, a parent’s reasons for wanting to relocate will center on moving for a new spouse or relationship, or to move forward in their career. However, under New York law, one parent cannot just move a child far away from their other parent without Court permission if the other parent objects. If the parent moves the child over the other parent’s objections without a court order, they run the risk of losing custody to that parent in the long run.
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In determining whether the custodial parent can relocate with the parties’ child or children, the court will adhere to what is known as the “best interests of the child standard.” Meaning, the court will look at a number of factors to determine if the child will be far more benefited by moving, or better off staying put. The parent’s needs and preferences are not a priority.
To determine the best interests of the child, the court will look at a number of factors, known as Tropea factors, based on the case they are taken from. These factors include:
If it appears that a parent wants to relocate out of spite, or on a whim, the court is highly unlikely to grant them the ability to move with the child. However, in the same vein, if the objecting parent is doing so merely out of spite or doesn’t have a basis for the objection, the relocation may be more likely to be allowed. Although remarriage and work are considered acceptable and viable reasons for moving, they can be outweighed by the impact of the move on the child or children. For example, if a child has a close knit relationship with both parents, and seeing the non-custodial parent less often, changing schools, and losing their social and family network will negatively impact them, the court will often tell the parent seeking to relocate to choose between staying put or relocating without the child, effecting a change of custody.
As stated, the nature of the relationship between the child and each parent is crucial. In cases where the non-custodial parent has only limited parenting time to begin with, or does not exercise their parenting time, or provide emotional and financial support, or the relationship is strained, the court is more likely to allow the custodial parent to relocate. For example, if the child only sees the parent once a month, and it can be demonstrated that they will still continue to see the parent once a month if they live in a different state, that relocation is more likely to be granted than in a case where a child would go from seeing the non-custodial parent twice a week to once a month or less. Any move that severely cuts down on the amount and quality of parenting time between the non-custodial parent and the subject child is going to be very closely looked at. In a similar vein, if a non-custodial parent doesn’t exercise their rights and pops in and out of their child or children’s lives, a relocation is more likely to be granted.
One of the most important factors is the fourth one, where a court looks at the economic, educational, and emotional impact of the move on the child. In cases where the child may have a far better standard of living, more educational opportunities, and is moving to a place with an established family and social network, a relocation is more likely to be granted. Where a child would be moving to an area with a lower standard of living, switching from a school that they are doing well in or has a particular program they participate in, and they are being removed from friends and family they are close to, a move is far less likely to be permitted.
Lastly, as stated, the court is going to look closely at how, should the relocation be granted, the relationship between the child and the non-custodial parent can be maintained. As stated, if there were irregular or less frequent visits, this could be easy. In the same vein, if the move is to the next state but still within easy driving distance (such as moving from New York City to New Jersey), maintaining a visitation schedule could be fairly straightforward. Other times, solutions such as longer visits (giving the non-custodial parent extended time that occurs less frequently) might be the solution. The court will also look at the financial abilities of the parties to travel (a cross-country flight is a far greater expense than a ride on the PATH train). If it looks like the relationship between the child and the non-custodial parent will be reduced, a New York court will be far less likely to permit relocation.
Overall, if you are seeking to relocate, you should make sure that you have a plan, whereby you can show the court that you are relocating for a good reason (remarriage, work), that the relocation will benefit your child or children emotionally, financially, and educationally (better standard of living, closer to other family, better schools/particular educational programs), and, that there are ways to maintain the current relationship that your child has with the other parent. Or, the lack of a relationship between your child and the non-custodial parent.
If you are seeking to object to a relocation, it is important to do the opposite: show that the move is unnecessary (plenty of comparable jobs in New York, the new spouse could be the one to move, etc.), that removing your child or children from their current environment would have a negative impact (changing schools is challenging, they are further from friends and family) and show that you are an active part of your child’s life. This last part is crucial. Exercise your visitation rights in full, pay child support as required, and show how a relocation would cut into the time you have with your child or children. Also, be prepared to move for or accept full custody if the other parent still plans on moving but the court decrees your child should stay in New York.
Although relocation cases can be difficult, the ultimate goal is that both parties get to maintain a close relationship with their children and the child ends up in a location that is in their best interests—whether here or somewhere else.
Contact an attorney from Peter L. Cedeño & Associates, P.C. to learn more about how you can reach a favorable conclusion to your situation. With more than two decades of experience in family law cases, you can trust us to provide the counsel you need at this time.
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