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Decades Of Litigation Experience

Relocation of a Custodial Parent with a Minor Child

by | Apr 21, 2021 | Firm News |

By Jennifer L. Garber, Esq.

Relocation of a Custodial Parent with a Minor Child Barring any contrary terms in a written agreement, when a parent wishes to move with a child (a move out of state or which would impede the other parent’s parenting time with the child), that parent should not do so without first seeking the express (written) permission of the other parent. If the other parent does not agree, a move should not be undertaken without the Court’s permission. A parent who seeks to move with a child may do so by petitioning the Family Court or Supreme Court by way of Notice of Motion or Order to Show Cause. A parent who moves without permission may be subject to a Writ of Habeas Corpus by the other parent, demanding the immediate return of the child and its presence before the Court.

How are relocation petitions adjudicated? “A parent’s relocation request must be considered on its own merits with due consideration of all the relevant facts and circumstances and with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child.” Tropea v. Tropea, 87 N.Y.2d 727, 731 (1996).The court is free to consider and give appropriate weight to all of the factors that may be relevant to the determination. These factors include, but are not limited to each parent’s reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the child’s future contact with the noncustodial parent, the degree to which the custodial parent’s and child’s life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements. In the end, it is for the court to determine, based on all of the proof, whether it has been established by a preponderance of the evidence that a proposed relocation would serve the child’s best interests. In Tropea, the Court of Appeals established the standard for determining relocation requests. The applicable burden of proof is a preponderance of the evidence and the factors for consideration include, but are not limited to:
(1) each parent’s reasons for seeking or opposing the move,
(2) the quality of the relationships between the child and the parents,
(3) the impact of the move on the quantity and quality of the child’s future contact with the noncustodial parent,
(4) the degree to which the custodial parent’s and child’s life was enhanced economically, emotionally and educationally by the move, and
(5) the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements. Notwithstanding the above, the Appellate Division, Second Department, reaffirmed that “the impact of the move on the relationship between the child[ren] and the noncustodial parent will remain a central concern.” Matter of Follini v Currie, 176 A.D.3d 1203, 1205 (2nd Dept. 2019). Before you relocate with your child, it is advisable to speak with an attorney.