When the parent has primary custody of a child of the marriage, a change in circumstances must be in the child’s best interest.
We are a mobile, modern society. It is not unusual for a person to move a great distance for career, retirement, relationship, extended family, aging parents or other reasons. Because of electronic communication methods and transportation availability, a person moving far away can still keep in close touch with those left behind electronically and visit when possible, if finances allow.
These considerations become complicated when the person moving away is the divorced, primary custodial parent of a minor child and the move could negatively affect that child's relationship with the other parent. In New York, courts are hesitant to allow a child to be moved away from the parent left behind if that parent is fit and has a healthy, active parent-child relationship.
Parental relocation can require New York court approval in certain circumstances. The original divorce decree may contain geographical restrictions that the parent who wants to move may need to obtain court permission to have modified. A proposed move that would result in significantly changed circumstances requires the court to look at whether the new arrangement would be in the child's best interest.
The parent requesting to relocate must show that it would be in the child's best interest by a preponderance of evidence.
All Relevant Factors
A New York court looks at all factors in each unique case that inform the judge about what is in the child's best interest. What is relevant depends on the family circumstances and the particular needs of the child. New York cases have held that a judge should not rely on just one factor in deciding the child's best interest, but should consider all relevant factors.
In and of itself, the distance that the proposed move would take the child away from the other parent is not necessarily determinative, although moving a child across the country or out of the country does require a significant showing of an enhancement in the child's life, especially if a good relationship with the other parents exists locally.
Even a move of a relatively short distance may not be in a child's best interest. In one unanimous 2017 case, the New York Supreme Court, Appellate Division, Second Department refused to overturn the trial court's order that the mother not be allowed to move 17 miles away from the father with the children.
The court reasoned in Lipari v. Lipari that the mother's desire to have a shorter commute to work and lower residential expenses had not shown that the move would be in the children's best interest. The children and father had a rich relationship and saw each other several times each week, even during times not required by the divorce decree. The father worked sometimes in New Jersey and the 17-mile addition of distance would prevent him from spending as much time with the children, when he had previously moved to within a five-minute drive from them.
The court said the mother had not shown the move would enhance the children "economically, emotionally, or educationally ..."
Relocation requests can also result in modifications of custody arrangements, even a change of primary custody to the parent staying behind. If a move away is awarded, visitation arrangements will likely need significant modification.
Anyone in New York seeking to move away with a child or opposing such a move by the other parent should seek legal advice to understand the options available.