Can my Ex stop me from moving away with the kids after divorce?

Can my Ex stop me from moving away with the kids after divorce?

Divorced custodial parent relocation analysis in New York focuses on the best interests of the child.

It is not unusual after divorce that a residential custodial parent of a couple’s children seeks to relocate from the vicinity of the noncustodial parent. Perhaps the custodial parent can get a better job, or is remarrying, or has family in the desired new location. In some instances, the non-custodial parent agrees that for financial, education or proximity to family members the move would benefit the children. In those cases, the parties agree upon differing visitation schedules so as to include school vacations, summer, daily face-time sessions and other creative measures.

However, in many instances, the noncustodial parent opposes the move because it would reduce the access that the noncustodial parent has to the children. In such cases, a dispute arises and the parties often appeal to the court to approve (or deny) a relocation plan.

In Tropea v. Tropea, New York’s Court of Appeals (the state’s highest court) granted the petitioner’s request to relocate with the rationale that the requested relocation would not deprive the respondent of regular and meaningful access to his children. Further, the petitioner proposed a relocation schedule that permitted the noncustodial parent frequent and regular contact with the children on the weekends and summer vacation. Additionally, the court found that the move would be in the best interests of the children. 212 A.D.2d 1050, 624 N.Y.S.2d 1010 (1996).

The court rejected a long-used three-step analysis in favor of requiring that lower courts consider each relocation request on its own merits by reviewing all of the relevant facts and circumstances, and with “predominant emphasis being placed on what outcome is most likely to serve the best interests of the child.” The Court of Appeals described the

Factors for a New York court to consider when a divorced custodial parent seeks to relocate with the children:

  1. Whether the actual move is in the best interests of the child (education, family support/child care by extended family, community, education, finances);
  2. Whether the non-custodial parent will have significant time with the children on an alternative schedule (Summer, weekends, school vacations);
  3. Whether the proposed residence will benefit the custodial parent financially so as to enable the children to live a more fortunate upbringing (i.e., the custodial parent will be enhanced economically by the move);
  4. The presence of child care by family members in the location to which relocation is sought, the thought being such care betters children’s emotional well-being;
  5. Inability of the custodial parent to obtain employment in the presently inhabited jurisdiction;
  6. Whether it is feasible and desirable to change custody to the noncustodial parent instead of relocating the children with the custodial parent;
  7. The good faith of the parents in requesting or opposing the move;
  8. The child’s respective attachments to each parent;
  9. The possibility of devising a visitation schedule that will enable the noncustodial parent to maintain a meaningful parent-child relationship;
  10. The quality of the life-style that the child would have if the proposed move were permitted or denied;
  11. The negative impact, if any, from continued or exacerbated hostility between the custodial and noncustodial parents and the effect that the move may have on any extended family relationships; and
  12. Any other facts or circumstances that have a bearing on the parties’ situation with a view toward minimizing the parents’ discomfort and maximizing the child’s prospects of a stable, comfortable and happy life.

In essence, in New York the determination of whether the family will be permitted to relocate is fact based, and a full fact-finding analysis is required in order to assess the best interests of the child. Therefore, when obtaining legal advice on a matter such as relocation, it is crucial that your attorney be aware of all of the circumstances surrounding your matter.

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Image source: “Map of the United States Including Western Territories, 12/1848 by U.S. National Archives in Flickr Commons.

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