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When a residential custodian in New York wants to relocate with the children

While the court will consider all relevant factors, the defining consideration is what would be in the children’s best interests.

When the dust settles after a divorce or custody proceeding, those involved may feel relief at the chance to just get on with their lives and become accustomed to the new custody and visitation arrangements. Sometimes though, the parent who has residential custody of the children wants to move away from their current residence to a distance that would interfere with the other parent's access to the children. Often the reason for relocation is to pursue a new personal or professional opportunity or be near extended family who may be able to give support in terms of finances or care for the children.

This often is met with resistance by the other parent, who may not want to disrupt his or her involvement in the children's lives made possible by living in close proximity.

Relocation by the residential custodian requires a modification of the existing order of custody and parental access. As an incentive to permit relocation or where the order permits relocation, often the parent who is not moving is granted additional weekend time, school vacation and summer visitation opportunities. In addition, the parent who is moving will often bear most or all of the cost of travel for the child.

The parties may be able to negotiate an agreement about the proposed parental relocation, including adjustments in visitation and even custody. If they cannot settle the dispute out of court, they will have to go back to court for a judge to decide for them.

What you never want to do is move first and ask permission later. That almost always results in the court changing custody to the parent who did not move.

New York legal standards for parental relocation

The overarching concern of New York courts facing parental relocation questions is what would be in the children's best interests. The Court of Appeals of New York, the state's highest court, established in the 1996 case of Tropea v. Tropea the legal standards that apply when a custodial parent seeks to move away with the children.

The Tropea court observed that relocation questions are "some of the knottiest and most disturbing problems" courts must answer.

The high court said that the parent seeking to move away must show the court by a preponderance of the evidence that the proposed move would be in the children's best interests. With the kids' best interests as the court's lodestar, the judge should "be free to consider and give appropriate weight to all of the factors that may be relevant to the determination."

According to the court, those factors may include:

  • Custodial parent's reason for seeking permission to move
  • Left-behind parent's reasons for opposing the move away
  • Quality of each parent-child relationship
  • How the move would affect the "quantity and quality of the child's future contact" with the parent left behind
  • Financial, emotional and educational enhancements the move would bring to the custodial parent's and the children's lives
  • Whether appropriate visitation could preserve the children's relationship with the noncustodial parent from afar

The court emphasized that the analysis should focus on the unique circumstances of the parties and children, which may be a complex task, but required to arrive at the decision most likely to reinforce the children's best interests. As the court explained, "it is the right and needs of the children that must be accorded the greatest weight, since they are the innocent victims of their parents' decision to divorce and are the least equipped to handle the stresses of the changing family situation."

The lawyers at Angela Scarlato & Associates, P.C., in Brooklyn advise and represent parents in relocation matters throughout New York City.