Relocations can be discussed and settled upon in child custody cases, mediations and collaborative divorce cases. What happens, however, if the parties (usually parents) do not agree on whether a parent should be allowed? As usual, the best interests of the children are used as the legal standard in New York to decide relocation requests in child custody cases. The default law, once an order about child custody or parenting time (aka visitation) is made, is that the parent that has physical custody would need permission from the other parent, or a court that has jurisdiction about child custody to decide the relocation request. Parties to a child custody and parenting time case are free to agree to include different language about future relocations with the child. If the order is silent about relocations, the default law is what would control in the case. As a New York City and Long Island child custody lawyer, I have experience in settling and litigating relocation issues in child custody cases.
Probably the oldest and most repeated story about a custody dispute is the biblical story about the wise King Solomon. Two women came to his court both claiming to be the mother of a baby. As the judge, King Solomon proposed to resolve the situation by cutting the baby in half and giving each woman half of the baby. One of the litigants thought this was a great idea while the other begged the King to give the live baby to the other woman. King Solomon then decided that the true mother was the one who begged for the baby to be given to the other woman. A New York court cannot propose splitting the baby in half, like the wise King, so in a custody dispute the court is left with the prospect of deciding which parent the child should live with.
The highest court in New York State, the New York Court of Appeals has set forth factors which should be considered by a judge, or trier of fact when deciding what outcome is the likeliest to be in the best interest of the child, when deciding relocation requests. For ease of reference I am going to list them out here. The case law dictates that the following is significant and should be considered by the court:
- The rights of each parents should be considered however the rights and needs of the children are of paramount importance;
- What impact would the move have on the relationship between the child and the parent that remains in New York?
- What losses will occur with the move?
- What is the reason that the custodial parent wants to move?
- What benefits would the child derive if the move is allowed?
- What harm might occur if the move is not allowed?
- Is there economic necessity for the move?
- Are there health reasons for the move?
- Are there other reasons, that would be of an overall benefit the child(ren), for the move such as a second marriage or a chance for the custodial parent to improve his or her financial situation?
- Does that non-custodial parent have an interest in becoming the custodial parent?
- How feasible and desirable is a change in custody?
- How strong are the child(ren)’s ties to the noncustodial parent?
- How strong are the child’s ties to the community?
- Is a parallel move by the noncustodial parent realistic?
- Is the custodial parent acting in good faith in proposing the move?
- Is the non custodial parent acting in good faith in opposing the move?
- What are the attachments of each child to the custodial parent and the noncustodial parent?
- Is it possible to make a parenting time (visitation) schedule that will allow the noncustodial parent and child a meaningful relationship?
- What life quality will the children enjoy if the move is allowed or not allowed?
- What will be the impact on hostility between the parents?
- Will the move or denial of the move change extended-family relationships?
- Are there other considerations reflecting on the situation, particularly those that will minimize the plight of the parents and enhance the child’s best interests?
Feel free to contact this office about your relocation concerns. It will be our pleasure to speak with you about it.