Custody Issues

Moving and Custody Issues

When parents with minor children separate or divorce, they live in separate residences where the children will either live as their primary or custodial residence and then visit the other parent at their homes. In the majority of cases, the parents will live within a few miles of each other so transportation for visitation purposes is not a major issue.

However, changes in a parent’s life occur frequently that may necessitate that parent to relocate, usually to pursue a new employment opportunity with better pay and benefits. In other cases, the parent will have remarried and will need or want to move to the new spouse’s residence, which may be in another part of the state or even thousands of miles away.

In New York, the primary custodian of the children may not simply pack up and move away with the children unless the non-custodial parent consents. If there is no consent, then the custodial parent must seek court approval to take the children to the new location. If the parent does not, then that parent risks losing custody.

Whether you are the custodial parent who wishes to relocate or the non-custodial parent who is objecting to the move, you should be aware of the factors the court will consider in determining whether to grant or deny the request and if a change in custody will be ordered.

 

Standard and Factors the Court Considers

Whenever a child’s welfare is considered, the court will use the broad and subjective standard of what is in the child’s best interest. In a relocation request, the court will determine if the relocation benefits the child or severely inhibits or harms the relationship he or she has with the non-custodial parent.
Factors the court considers include:

  1. The reason for the relocation
  2. Why the other parent is objecting
  3. The distance between the parents and required travel arrangements and the costs
  4. The quality of the relationship each parent has with the child
  5. How the move may impact the relationship the child has with the non-custodial parent–will visitations or the time spent with that parent be reduced?
  6. Will the relocation benefit the moving spouse financially and emotionally?
  7. Will the move benefit the child financially and emotionally and/or benefit the child’s education? How will the child’s lifestyle be changed?
  8. Will the move create hostility between the parents?
  9. The feasibility of transferring custody to the non-custodial parent to allow the move–the fitness of the parties
  10. How will the relationship with the non-custodial parent be preserved? Can visitation be reasonably revised?

The issue of relocation is a major one and is not an easy one to resolve.

 

The Parent-Child Relationship is Paramount

Relocation for employment or marital reasons are reasonable and acceptable. If consent is not given by the objecting parent, then that parent must be able to articulate how the move will adversely impact the quality of the relationship he or she has with the child as well as the amount of time spent together and other reasons for why the move is not in the child’s best interest.

Reasons for Granting the Move

If the non-custodial parent only sees the child once per month or sporadically or does not provide much emotional or financial support, the court will likely grant the move. The moving parent could assure the court that the once or twice per month visits can be maintained despite the distance involved and that transportation costs can be worked out.

The custodial and relocating parent can show that the move would greatly benefit the child with a higher standard of living, a better school, better medical care if the child suffers from a particular condition, and perhaps will be closer to cousins or other extended family members with whom there is an established relationship. There may also be more recreational or community activities for the child in the new location. It helps if there are assurances that the relocating parent will pay the transportation costs so the child can maintain the same or similar frequency of visits with the other parent.

Reasons for Objecting to the Move

If the non-custodial parent has a close and quality relationship with the child and can demonstrate that the child has close ties to his or her school, friends and extended family members in the community, then the burden on the relocating parent is much higher. The objecting parent could assert that the new spouse could stay in New York and look for similar types of work here. The child could also be negatively impacted by the loss of close friends, and suffer from the greater distance from extended family like grandparents, cousins, aunts, and uncles, as well as activities that he or she has been actively and enthusiastically engaged in. Changing schools is difficult for any child, especially one who may have a particularly difficult time in adjusting to a new and strange environment.

Further, the non-custodial parent may argue that he or she has been fully engaged in the life of the child with paying child support on time and for other expenses, is primarily responsible for taking the child to various activities, and that the quality of the relationship would be greatly diminished by the move. If the child is old or mature enough, the court can listen to and consider the child’s feelings about the move.

 

Be Prepared for the Ruling

Regardless of how the court rules, both parents should be prepared for scenarios where either the child now lives much farther away, or where that the child is ordered to remain in New York. If the latter, then the relocating parent must decide to either remain here or perhaps relinquish primary custody to the other parent so that the move may be made.

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