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Decades Of Litigation Experience

Relocation and Radius Clauses

by | Aug 12, 2021 | Firm News |

By Jennifer L. Garber, Esq.

One major concern of the parent who does not have residential (“physical”) custody of their child(ren) is that the parent with residential custody could pick up and relocate at any time, making it difficult, if not impossible, for the other parent to continue to have meaningful visitation and contact with the child(ren). The concern about the amount of time it will take for the child(ren) to be shuffled between the home of the residential custodian and that of the other parent is a very real concern. While any significant move that would affect the child(ren) is subject to a relocation hearing (i.e., that there has been a change of circumstances and that the proposed relocation would serve the subject children’s best interests, utilizing the factors set forth by the New York Court of Appeals in Tropea v. Tropea [87 N.Y.2d 727]), parties who enter into private settlement agreements frequently contract around this issue by setting forth what is known as a “Radius Clause”. Said clauses establish the distance (radius) that one or both parents may relocate within after an agreement is signed. These clauses are overwhelmingly upheld when subjected to judicial scrutiny.

There are many different types of radius clauses. Some clauses specify that a residential parent may not move outside of their current city, county, state. Other radius clauses may specify a certain number of miles that the residential parent must keep the child within. Other stricter clauses require the residential parent to remain in the child(ren)’s school district so as to ensure that the child(ren)’s education and social life are not interrupted.

A radius clause is highly advisable because a move by a residential parent that seems subjectively unreasonable to a parent may indeed be deemed objectively reasonable to a Court. See Matter of Katz v. Shomron, 116 A.D.3d 7772nd Dept. 2014).