Relocating with a child outside of New York after a divorce

When a custodial parent wants to relocate outside of New York  courts will consider what is in the best interest of the child. Moving a child is not like moving a small breed dog and people shouldn't view their children as their property. Any move outside of New York might hinder the continuation of the noncustodial parent’s visitation rights as originally planned and agreed by the parties or by the court, the parent might have to obtain a court’s approval before such move.

The standard applied by courts in relocation cases is whether a move would serve the best interest of the child, and not whether the move would benefit the custodial parent. The best interest of the child standard was established by court in two companion cases, Tropea v. Tropea and Matter of Brower v. Kenward, both of which not only changed the previously used three-step meaningful access exceptional circumstances analysis but also allowed new opportunity to review existing custody arrangements and orders.
Each relocation case is considered on its own merits and with due consideration of all of the relevant facts and circumstances that support the best interest of the child analysis. Some of these factors include but are not limited to:

·         the impact of the move on the relationship between the child and the noncustodial parent;

·         the rights and needs of the child;

·         the custodial parent’s reason for relocation;

·         the benefits that the child may enjoy or the harm that may ensue if the move is or is not permitted,

·         economic necessity;

·         health related concerns;

·         marriage or remarriage of the custodial parent;

·         the custodial parent’s opportunity to improve his/her economic situation;

·         the child’s respective attachments to the custodial and noncustodial parent;

·         the possibility of creating a visitation schedule that will enable the noncustodial parent to maintain a meaningful parent-child relationship;

·         the quality of lifestyle that the child would have if the move was permitted or denied;

·         the negative impact, if any, from continued or exacerbated hostility between the custodial and noncustodial parents;

·         which party is the more stable parent and would be more likely to foster a meaningful relationship between the child and the noncustodial parent;

·         the effect that the move may have on any extended family relationships.

In order to avoid relocation issues, many separation or settlement agreements contain what is called a “relocation clause” or “radius clause.” The clause commonly provides a direction as to whether a custodial parent may or may not relocate outside of a given radius, state or country without the prior consent of the other parent. The clause can take a number of different variations, but usually it is written to restrict the custodial parent’s ability to relocate without restraint.