Relocation of Children Under New York Law

"In reality, cases in which a custodial parent's desire to relocate conflicts with the desire of a noncustodial parent to maximize visitation opportunity are simply too complex to be satisfactorily handled within any mechanical, tiered analysis that prevents or interferes with a simultaneous weighing and comparative analysis of all of the relevant facts and circumstances...

We hold that each relocation request must be considered on its own merits with due consideration of all the relevant facts and circumstances and with predominant emphasis being placed on what outcome is most likely to serve the bests interests of the child."

From the New York Court of Appeals, Tropea v. Tropea.

In what circumstances may a custodial parent relocate to another state and take the children? The courts in New York regulate such moves carefully. The factors that the courts consider are numerous and unlimited. They include:

  • The reasons for the proposed move (economic, health, remarriage, "fresh start," other family members, etc.
  • The effect of the proposed move on parental visitation.
  • Whether visitation can be suitably revised.
  • Any provisions in a separation agreement concerning relocation.
  • The disruption of relationships in the event of a move.
  • The involvement of each parent and others in the child's life.
  • The distance and required travel arrangements involved in the move.
  • The living conditions and the educational, recreational, medical and other facilities available in the new location.
  • The results of any home studies regarding the parties' current circumstances and the proposed new location.
  • The likely psychiatric impact upon the parties and the child if there is a move or change in custody.
  • Any violation of prior court orders.
  • The impact of the relocation on the noncustodial parent.
  • The possibility of transferring custody to the noncustodial parent in order to allow the custodial parent to move.
  • The feasibility of a parallel move by the noncustodial parent.
  • The good faith of the parent requesting the move.
  • The child's attachments to each parent.
  • The lifestyle of the child in each location, including emotional, educational, and economic factors.
  • The effect of hostility between the parents in each location.
  • The effect on grandparent and other extended family relationships.
  • The safety of the child and the safety of either parent from physical abuse by the other parent.
  • The preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision.
  • The needs of the child.
  • The stability of the home environment offered.
  • The quality and continuity of the child's education.
  • The fitness of the parents.
  • The geographical proximity of the parents' homes.
  • The extent and quality of the time spent with the child prior to or subsequent to the separation.
  • The parents' employment responsibilities.

Separation after Divorce Gets Tricky for Parents

By Leslie Eaton

New York Times
August 8, 2004

NEW YORK - Not too long ago, Jacqueline Scott Sheid was a pretty typical mother on the Upper East Side of Manhattan. Divorced and with a young daughter, she had quickly remarried, borne a son, and interrupted her career to stay home with the children while her husband, Xavier Sheid, worked on Wall Street.

Early last year, Xavier Sheid lost his job and saw his only career opportunity in California. But Jacqueline Sheid's ex-husband, who shares joint legal custody of their daughter, refused to allow the girl to move away. So Jacqueline Sheid has spent much of the last year using JetBlue to shuttle between her son and husband on the West Coast and her daughter (and ex) on the East.

The New York court system, which she hoped would help her family resolve the problem, has cost her tens of thousands of dollars in fees for court-appointed experts, she said, and has helped to prolong the process by objecting to her choice of lawyers.

Worst, she added, "they are making me choose between my children."

She is caught up in what legal experts and social scientists say may be the most contentious and fastest-growing kind of custody litigation in the country today: relocation cases. Also known as move-aways, these involve a parent who wants to move with a child over the other parent's objections.

More fathers, who play a larger role in their children's daily lives than in earlier decades, are refusing to allow their children to move out of town, forcing mothers -- who about 80 percent of the time have physical custody of children -- to remain in the same city. And more mothers are fighting back.

Spurred by such changes in society, in the law and in the economy, relocation cases are roiling families, and courtrooms, from California to Colorado to Connecticut.

Relocation "is the hottest issue in the divorce courts at the moment," said Judith S. Wallerstein, a leading expert on divorce from Marin County, Calif., who favors the rights of mothers to move.

Though there are no reliable statistics on these cases, the highest courts in at least seven states have tackled relocations in the past three years, and lawyers say they represent just the tip of the litigation iceberg.

"We tell people, the best parent is both parents, and it's hard to be a long-distance parent," said David L. Levy, president of the Children's Rights Council, a longtime advocate for fathers' rights and joint custody. "There are 15 million noncustodial fathers in this country, and 3 million noncustodial mothers. They shouldn't be marginalized."

The United States remains a highly mobile society; a 2000 Census Bureau survey found that in a 12-month period, 43.4 million people changed residences. Americans have become more likely to move longer distances, the survey found, and divorced people are far more likely to move than those who are married.

Ultimately, relocation cases usually come down to "the best interests of the child," but there is little agreement about what that means. In many states, including New York, judges have a laundry list of factors to consider, but no clear way to weigh their importance.

Although the laws differ in each state, judges hearing such cases usually begin in a traditional way, weighing whether one parent is more fit than the other. But then they have to assess the motives for the proposed moves and for the objections. Does the parent who wants to move have a compelling reason, or is she just trying to keep the child away from the father? Does the parent who opposes the move really want to be involved with the child, or is he just trying to control his ex-wife?

The legal and moral difficulty of such cases was made clear in April in a case decided by the California Supreme Court involving the two sons of Gary LaMusga and Susan Poston Navarro, who divorced in 1996.

Navarro, who had primary physical custody of the boys, remarried and had another child. In 2001, she asked the court for permission to move to Cleveland, where her husband had gotten a better job.

LaMusga objected, saying that Navarro was trying to alienate the boys from him, and asked for primary custody if she moved.

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