Can a custodial parent relocate with a child following a divorce or custody order in New York?

Relocating from your current geographic location is always complicated, but it gets even more complex if you are trying to move when there is an existing custody and visitation arrangement in place and the other parent is not consenting to the move. Even if you have sole custody, permission from Court will be necessary in order to proceed with the relocation, where the other parent’s visitation rights will be implicated by the move. Because it can be difficult to understand when the other parent’s rights will be implicated and because relocating  with an existing custody order requires careful and thorough planning to improve chances of success in Court, it is beneficial to have an attorney guiding you along the way. Our law firm in Brooklyn handles relocation cases in New York and would be happy to assist you with yours.

 

WHAT WILL THE COURT CONSIDER WHEN DETERMINING A PARENT’S REQUEST TO RELOCATE WITH CHILDREN?

When considering a request for relocation, a Court in New York is required to consider all relevant facts and circumstances of the proposed relocation and the existing custodial and visitation arrangements to determine what outcome will best serve the child(ren)’s best interests.  Even if the relocation will have a substantial benefit to the parent, the Court’s primary focus will always be the impact of the move on the child(ren) involved, and the burden is on the parent who seeks the relocation to prove to the  Court that the move is best for the child(ren).

 In deciding on the relocation, the Court will seriously consider the impact that the relocation  would have on the relationship between the child(ren) and the parent who would remain behind. History of domestic violence will be another important consideration for the Court, but that alone may not necessarily be sufficient to prevail on a request for relocation.

 

WHAT HAPPENS IF I MOVE WITHOUT SEEKING PERMISSION FROM COURT?

Relocating without first seeking permission from Court can have serious consequences if the other parent fights the relocation and takes you to Court. If the move interferes with the other parent’s custodial or visitation rights, you risk being held in contempt of Court, and in some cases the Court may go as far as to change custody to the other parent. If you already moved but the Court denies the relocation, you may be forced to move back. If you invested in a house or changed your job based on the prospect of relocating, that could result in significant financial losses. It is important to keep in mind that “relocation” may constitute something as simple as changing boroughs.

 In the case of Schwartz v Schwartz, 895 N.Y.S.2d 206 (2nd Dep’t 2010) ,  a mother sought to relocate from Brooklyn to Staten Island, and made a non-refundable downpayment on a home there without first obtaining the Court’s approval of the move.  The father, who also resided in Brooklyn, filed in Court to block the relocation and prevailed. The Court found that even though the proposed relocation was within New York City, it would have a detrimental impact on the “quality and quantity of contact” the father had with the children.

Even if the other parent consents to your proposed relocation, it is best to officially modify the existing custody and/or visitation order with their consent to provide for the relocation in order to avoid a legal battle or consequences if they change their mind in the future.

 

PREPARING TO ASK FOR RELOCATION

Due to the in depth analysis  the Court is required to conduct before deciding whether to grant the relocation request, it is important to have a clear and concise plan for the relocation before going to Court. Among other things, it is important to know why and where you plan to move, where you will live in the new area, where the child(ren) will attend school,  what activities are available to the child(ren) in that area, and the financial impact on the children and what their standard of living will be. It is also important to have a proposal regarding the other parent’s continued access to the Child and maintaining their relationship. Vagueness and uncertainty in the details of the relocation pose a significant risk of undermining your case.

Tsiring  & Feldman P.C. can help you with your custody and relocation case to make the process as smooth as possible. Our office is conveniently located in Brooklyn, New York near the Sheepshead Bay train station, and we offer both in person and virtual consultations. Contact our office to schedule your consultation.