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Child Custody and Relocation

Child Custody and Relocation

Relocation is not an uncommon request in a New York custody case, either during a divorce or years later. If you are the custodial parent, you must either reach an agreement with the other parent about relocation or receive permission from the court to move away from the area with your child if the move will disrupt your parenting plan. Relocation hearings can be difficult and contentious because there is so much at stake for both parties.

What Constitutes Relocation?

In order to have a relocation hearing, the custodial parent must be seeking to relocate. There is no specific distance that makes a move a relocation. Instead, the standard is whether the move will disrupt the non-custodial parent's regular and meaningful access to the children. If you are seeking relocation in the years after your divorce, it is likely your custody order or judgment of divorce specifies a radius you must stay within. Sometimes a 50-mile radius is used. If your judgment or order includes wording like this, then the lines are clearly drawn for what is and is not a relocation.

An additional issue for families is the length of time the child will be away. You may plan to spend the summer in the south of France or part of the winter in California or Florida at another home. You aren't actually permanently relocating because you are not changing your residence. If the move is not permanent, it is not a true relocation. However, it does create a violation of the parenting plan if it disrupts the scheduled times the other parent has with the child. This is then handled as a violation (if the non-custodial parent seeks to stop you) or a modification (if you wish to change the terms of the parenting plan to allow this kind of travel).

Reasons for Relocation

There are many reasons you might choose to relocate, but the two most common reasons are remarriage, education (the parent's or the child's), or career reasons. These are also the reasons that courts usually find more amenable, although there certainly could be other reasons that might be considered necessary.

How the Court Decides a Relocation Issue

All custody determinations are made based on what is in the best interests of the child or children. That is always the guiding factor relied upon for the court. To make that determination, New York State uses a series of questions called the Tropea factors (named after a relocation case of that name). When considering a relocation request, the court must evaluate the following:

  1. The reason the custodial parent is seeking to move.
  2. The reason the noncustodial parent is opposing the move.
  3. The quality of the relationships the child has with each parent.
  4. The impact of the move on the child's and the custodial parent's quality of life (economically, emotionally, and educationally).
  5. The impact of the move on the quality and quantity of the child's future contact with the non-custodial parent.
  6. The feasibility of preserving the relationship between the non-custodial parent and the child with visitation arrangements.

Later cases have stated that the court can also consider the child's wishes about the relocation as well as the impact the separation would have on the child's relationship with half-siblings.

While the court must consider all of these factors, the judge has discretion in determining how much weight to assign to them. Each case is to be determined on its own merits, which means that the court maintains a lot of discretion in making a relocation determination.

Creating a Relocation Argument

The parent who is seeking to move bears the burden of proving by a preponderance of the evidence that relocation is what is in the best interest of the child. If you're the parent who wishes to move, it's up to your attorney to convince the judge that a move is warranted.

The argument for relocation is complex and must address all of the factors the court considers in making its determination. Still, the bottom line is that the relocating parent must convince the court that the move is what is best for the child.

The most important component of an argument for relocation is a plan that shows how your child will continue their relationship with the other parent. This should include extended holiday, school break, and summer visits and regular video chats to enable them to spend time together. The goal is to show the court that despite the distance, the parent and child will have adequate ongoing contact to maintain their relationship.

If the child's relationship with the non-custodial parent has been irregular or generally poor, this is an important factor to alert the court about because then there is not much to maintain. Logs showing the frequency (or lack of frequency) with which the non-custodial parent has utilized their visitation is essential. Evidence about a lack of closeness or difficulties in the parent-child relationship is also important.

The reason for the move is very important to detail. If the move is for a new marriage, it's important to show how it will create family stability. It's also key to describe the relationship the child has with the new stepparent and any stepchildren to highlight their closeness and that the move will preserve these relationships. If the move is career-related, it is important to demonstrate that the relocation will improve the child's life. Ideally, it is important to be able to show there will be an improvement in the standard of living because of this.

If the reason for the move is for the parent to pursue an education, it's critical to demonstrate how that education will eventually improve the family's standard of living (such as moving somewhere to go to medical school). If the move is to improve the child's education or training (such as to enroll the child in a school that meets their specific educational needs or to move the child near a sports trainer in a sport they are a proficient in), it's necessary to document the child's unique needs and how this particular school or trainer in this location is necessary.

No matter the reason for the move, your case should highlight the positive changes the relocation will generate in the child's life, including a better (or at least equivalent) school and extra-curricular benefits and an increased family and emotional support system.

Opposing a Relocation

If you are the non-custodial parent opposing a relocation, your argument centers on debunking all the positive changes the custodial parent promises in their argument. Your argument’s key focus will be that separation from you will harm the child and your relationship with each other. It's essential to highlight your closeness and the amount of time you currently spend together so that the court can understand what a significant loss the move will create for the child.

Hearing Results

If the court decides that relocation is not merited, the custodial parent has two options. The first is to change their plans and stay close to the non-custodial parent until the child turns 18. The second is to agree to a change in custody, with the child primarily residing with the non-custodial parent who will then become the custodial parent. Both of these options can be challenging to deal with. If the court grants the request to move, it will issue a revised parenting plan that specifies how often the non-custodial parent will have visitation and how they will be expected to stay in touch in the meantime.


Related topics: Child Custody (18) | Custodial Relocation (7)

Dror Bikel

Dror Bikel is a Manhattan-based divorce and child custody lawyer. He founded and leads Bikel and Schanfield, New York’s best-known firm for high-conflict matrimonial disputes.

As founding partner of the Manhattan-based firm, Bikel & Schanfield, LLP, Dror Bikel’s 20+ years of trial and litigation experience offers invaluable insight in facilitating settlements, mediating disputes and obtaining superior results for his clients. A recipient of the New York Super Lawyers Award, Mr. Bikel is voted among the Top 5% New York State Family Law Attorneys.

To connect with Dror: 212.682.6222 or [hidden email] or online
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