New York custodial-parent relocation

It can present a complex factual and legal situation when a custodial parent wants to move away with minor children.

It is not an unusual scenario. People get divorced and they want to start new lives. Sometimes that can mean moving - for a job, a new marriage or relationship, a fresh start or to be near extended family for support. So far, so good, but the stakes are raised when minor children are involved and the person who wants to move away is the custodial parent and wishes to take the children with him or her to live at the new home.

Understandably, the other parent who exercises visitation with his or her children is concerned about the threat to his or her relationship with the kids if they move away. It could mean a 15-minute drive to the children's house would become a 90-minute drive or it could mean a long flight across the country to reunite with the kids, depending on the circumstances.

Negotiate a solution?

The parties may be able to work out a new visitation schedule through negotiation that would accommodate the move. For example, regular electronic communication could be set up with the left-behind parent. Longer visits could be arranged like those over weekends, school vacations or even entire summers. Costs and logistics of transportation would also have to be agreed upon.

Children's best interests are paramount

If the parents cannot agree, the matter will end up in court before a judge as a request to modify the terms of child custody in the divorce decree. In response, the noncustodial parent may simply oppose the move or may also ask the court to modify the arrangement to make him or her the primary custodial parent so the children will not have to move.

The overarching priority to the judge under New York law is to make a decision that is in the child's best interest. To do that, the judge will consider all the facts and circumstances that are relevant to the situation. The New York Court of Appeals, the highest court in the state, has rejected set formulas or rigid tests to make this decision. Rather, the judge is to carefully analyze the family circumstances with the child's best interest as the most important goal.

Relevant factors

The Court of Appeals has directed that these factors, in addition to all other relevant factors, be considered by a judge in a relocation case:

  • Each parent's reasons for his or her position on the move
  • Quality of the relationships of the child and each parent
  • Impact of the proposed move on the "quantity and quality" of contact between the noncustodial parent and the child
  • Enhancement of the custodial parent and the child's lives "economically, emotionally and educationally" by the move
  • Ability of new visitation arrangements to preserve the relationship between the child and the noncustodial parent

Ultimately, the judge must decide whether it has been shown by a preponderance of the evidence that the proposed move would be in the child's best interest.

Every family is different and this area of New York law is quite complex, so any divorced parent with minor children who either wants to move away with the children or who is a noncustodial parent seeking to oppose such a move should seek legal advice from an experienced family lawyer.

Attorney Virginia A. Geiss of the Brooklyn Law Office of Virginia Geiss represents custodial parents seeking to relocate with their children as well as noncustodial parents facing relocation requests from custodial parents throughout the greater New York City metropolitan area.