New York child custody

Relocation and Custody

By Staff Writer

When a party desires to move a distance that would effect the other parent’s visitation, the issues of custody and visitation become even more complex. New York has a strong public policy that, favors regular, meaningful contact between the child and both parents. In today’s mobile society, the relocation of parents who are separated or divorced is not uncommon. Whether or not a relocation with the children will be permitted is often the subject of emotional and acrimonious litigation.

A custodial parent should never take the child and move a sufficient distance from the non-custodial parent so as to deprive that parent of regular, meaningful contact. Without the permission of either the Court or the other party, the custodial parent faces the risk of being forced to return to their prior home area to litigate the issue of the appropriateness of a relocation with the children. Non-custodial parents have the right to regular and meaningful contact with their children, which gives them the right to file an application with the Court to prevent a child’s relocation.

Often, in negotiating the terms of a Separation Agreement or a Custody Order, the parties will address the issue of relocation. If there is a possibility that you or the other parent will relocate, you should address that issue at the time that you are resolving all of your other issues. A Separation Agreement or a Custody Order can contain a provision regarding relocation. Once a legally valid Agreement or Order addressing relocation has been signed, it will usually be decisive if a party seeks relocate.

If there is no Agreement or Order addressing relocation, either party can make an application to the Court either before or after the move and seek to block or obtain permission for the move. The Court will decide whether to permit the relocation with the child or children. A relocation without the children is always permissible.

A Court will base its decision on relocation on the best interests of the child giving particular consideration to the child’s right to have regular, meaningful contact with the non-custodial parent. If, based upon the facts and circumstances of the particular case, the move is deemed in the child’s best interests, the Court will allow the custodial parent to relocate. If not, the request to move will be denied.

Each relocation request will be determined according to the facts and circumstances of the particular case. One of the initial factors that the Court will consider is why the custodial parent wants to move. Better employment, educational and financial opportunities, and health concerns are just some of the reasons Courts have relied upon in granting or denying relocation requests. If the relocation, taking into consideration the reasons for the move and all other relevant factors, will serve the child’s best interests, the Court will grant permission for the custodial parent to relocate.

There are a variety of other factors that Courts have considered in determining whether to permit a relocation. These include the strength and continuity of the child’s relationship with the non-custodial parent, the child’s connection with the community, the child’s involvement with other family members and friends in the area, and how the move will effect the non-custodial parent’s access to and relationship with the child. If the non-custodial parent and the child had regular contact before the move, the Court will consider whether revising the access or visitation schedule can ensure meaningful access. In relocation cases where the move has been permitted, it is common to see a modified visitation schedule that allows the non-custodial parent blocks of time, such as a large part of the summer and other school vacations.

The Court will also give particular consideration to how the child’s life will be effected by the move. Important factors to consider will be the educational opportunities in the new area, the financial effect of the move on the child and any emotional implications of the relocation. A parent considering relocation should always investigate the opportunities for the child prior to the move. Your application will be stronger if you can show that better opportunities await your child in the new location

Relocation should never be taken lightly. Simply because a party has physical Custody of a child does not permit them to relocate at will. Any move should only be made after consultation with an attorney. Similarly, if you are a non-custodial parent and your ex-spouse is thinking about moving or has moved a distance that negatively effects your contact with your child, you should consult an attorney as soon as possible. The longer a party has remained in the new area with the child the stronger their case will be.