Relocation of Children after Divorce by Custodial Parent: New York Divorce

Posted By Michael Rubenfeld || 26-Jul-2012

Over the last several decades we have become a very mobile society and moving is a relatively common experience. Sometimes after parties are divorced or separated there is an issue involving the relocation of the parties’ child by the custodial parent.

A request by a custodial parent to move with a child away from the noncustodial parent to a distant location may present a major conflict between the parents that can often create tremendous stress for the parties.

The custodial parent may be requesting permission to move with the children to a far away location that would make it difficult for the noncustodial parent to continue with a normal parenting time schedule and in some cases severely limit the frequency of contact that a noncustodial parent has with the children.

An extreme example of relocation would be where the parties currently live in the State of New York and the custodial parent desires to move with the parties’ children to the State of Florida without the consent of the noncustodial parent. The distance is so far that it would make it unlikely for the noncustodial parent to maintain frequent contact with the children.

Even a shorter move such as from the Long Island area to Upstate New York or New Jersey may have a negative impact on a noncustodial parent’s time with his or her child. A recent New York Appellate Court found that a move within New York City involving only 20 miles would make it difficult for a father who had frequent contact with the children to maintain quality contact because of having to travel during rush hour and that such onerous travel arrangements would likely affect the children’s willingness to visit with the father as frequently.

However, sometimes there are circumstances which would justify a request by a noncustodial parent to relocate a child’s residence against the wishes of a noncustodial parent. For example, Courts have granted such requests to relocate where the noncustodial parent has failed to pay child support and the custodial parent needs to relocate out of financial necessity in order to properly support the child.

A custodial parent who seeks to relocate the residence of a child without the consent of the other parent has the burden of demonstrating by a preponderance of evidence that the proposed move is in the child’s best interest. When reviewing a custodial parent’s request for permission to relocate, the primary focus must be on the best interests of the child.

In the State of New York, the Courts have stated that the factors relevant to whether to permit a custodial parent to relocate with a child include, but are not limited to the following:

1. The reasons for and against the move;

2. The relationship between the child and each parent;

3. How the move would affect the child's relationship with the non-custodial parent;

4. The economic benefits of moving, and how it would improve the child's quality of life; and

5. How realistic it is that the child can have continuing contact with the non-custodial parent.

In New York, the Courts are charged with determining each relocation case based on the totality of circumstances. As Long Island divorce and family law Attorneys we represent clients facing relocation issues in the Supreme and the Family Courts of the State of New York.