Relocation and Modification of Custodial Arrangements

One of the most common post-divorce scenarios is that the custodial parent wishes to relocate, but the other party objects to such a proposed move and argues that such a move may negatively impact the other parent’s relationship with the child. Assuming that the parties’ Judgment of Divorce, or separation agreement, does not conclusively address this issue, the party seeking to relocate will typically need to seek the court’s permission to do so.

As laid out in the leading case of Tropea v. Tropea, 87 N.Y.2d 727 (1996), the issue to be determined is whether the proposed relocation is in the best interest in the child. In doing so, the court is to consider the following criteria:

  1. Each parent’s reason for either seeking or opposing the relocation;
  2. The current state of the relationship between each parent and the child;
  3. The impact that the relocation will have on the quality of the child’s relationship with the non-custodial parent;
  4. The emotional, economic and educational effects that the move will have on the child; and
  5. The feasibility of maintaining the relationship between the child and non-custodial parent.

The trial court must weigh all of the factors and determine not what would be best for the parents but, rather, what is in the best interests of the child.

In Noble v. Noble, 52 A.D.3d 490 (2nd Dept. 2008), the mother sought to relocate from relocation from Long Island to upstate NY. The court held that the proposed relocation was in the children’s best interests since the proposed move would provide economic, emotional, and educational benefits for the mother and parties’ children without precluding meaningful and regular contact between children and father.

In Mallory v. Jackson, 51 A.D.3d 1088 (3rd Dept. 2008), the parties consented to a June 2006 order awarding joint legal custody with the mother having the primary physical residence of the children. In October 2006, the mother sought permission to relocate with parties’ children to North Carolina. The mother moved to North Carolina while petition was pending, leaving children with father at the maternal grandmother’s home in Schenectady County. Mother was required to demonstrate by a preponderance of the evidence that proposed relocation would be in the children’s best interests. Mother alleged that father had failed to provide her financial support throughout their relationship, and she was moving to be near a relative who offered financial assistance. The Appellate Division held that the mother, who had already relocated, failed to present evidence at hearing that her financial situation in North Carolina was significantly better than while living in New York. The mother’s remaining extended family continues to reside in New York. The proposed relocation to North Carolina would deprive children of meaningful contact with their father and members of their extended family and the mother failed to establish the existence of a compelling reason to justify the relocation of children to North Carolina.

If the court does not find the proposed move to be in the best interests of the children, the parent who has the primary physical residence of the children usually has a choice between staying or losing that primary physical residence to the other parent.

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