by Hope Tuber
After a divorce is complete, if there were children of the marriage, custody was resolved.
Typically, one parent is awarded residential custody of the child subject to visitation rights of the
other party. After some time passes, one question which may rise is it whether is it possible for
the residential parent to move out of the state. The appellate department discussed this issue in
Batchelder v. Bonhotel.
In Bonhotel, parties separated and stipulated that the Mother was to be the residential
parent, subject to the visitation rights of the Father. Father was entitled to see his son every other
weekend and one overnight every other week. There was consistent visitation and the Court
found that both Father and son benefitted from a close relationship. Two years later, the Mother
lost her job and made plans to move out of New York to Alabama. She informed the Father the
night before her departure. In response, the Father petitions the Court for a change in
circumstances and seeks residential custody of the child.
As a first step, to change custody there must be a significant change of circumstance. In
this case, step one was easily met as the Mother lost her employment and was seeking to move
out of state. The Court then immediately turned its attention to whether the Mother could
relocate with the child. In making such a determination, the Mother bears the burden of proof
that she should be allowed to move by a preponderance of evidence. The Court will look at the
following factors: (1) the relationship with the parents; (2) the effect of the move on the
noncustodial parent; (3) the potential enhancement to the custodial parent and child due to the
move; and (4) parents’ motives for seeking or opposing the move.
In this case, the Mother claimed that she was unemployed and had better prospects in
Alabama with her fiancé. It was subsequently discovered that the Mother recently met her fiancé
online and was planning to stay at his residence. It was also discovered that her ability to
support herself and her son, in addition to the child support, was completely dependent on the
fiancé. The Mother did not lose her job, but quit so she could move to Alabama. The fatal blow
for the Mother was that the Court found that she failed to foster a relationship between her son
and the Father and she failed to demonstrate that she was providing a stable environment for her
son. Evidence to support her lack of support between the son and the Father was the fact that she
sprung the move on the Father the day before and refused to give the Father contact information
regarding where she was going and how he could contact his son. The Father, on the other
hand, had a steady job, and though he had a girlfriend, was in a steady relationship providing a
stable environment. The key though was the Father’s willingness to work towards fostering a
close relationship between his son and the Mother. He explained that if the Mother were to leave
for Alabama, he committed to skype sessions for his son to see his mother no less than two or
three times a week. As a result, the Court denied the Mother’s request to take the child out of the
State and granted the Father’s request to change residential custody to the Father.
In this case, the Mother was unable to show how leaving the state would enhance the
child’s life, and what I believe was the key to this ruling, the Mother failed to show how she
planned on dealing with separation between the Father and his son. She was actively hostile to
the Father and in no way fostered the relationship.
The lesson to take away from this ruling is that the Courts do not look favorably on a party who in
any way interferes with the relationship between the child and your former spouse. One can surmise that the uphill battle she had to
move her son to Alabama was not made easier with her open hostility to the Father.
If you do want to move your child from the state, make sure that you have a well thought
out plan which includes fostering the relationship between your child the non-custodial parent.
In addition, be ready to explain how moving your child out of state and away from the non-
custodial parent is in the child’s best interests, i.e., will advance the child’s education, financial
welfare, and education.