As a divorce attorney working on Child Custody cases in Nassau County and Suffolk County on Long Island, NY, I’ve seen first-hand that following the dissolution of a marriage, it is not uncommon for former spouses to relocate away from the marital neighborhood. There are as many varied reasons for this as there are people: some wish to pursue other career opportunities, while others choose to move closer to family and friends in order to re-establish a support network post-divorce.
Heated Disputes over Child Custody
While it’s perfectly natural and understandable that people want to, or have to, move, it can become an issue when the former spouses have children together. Although many parents have their children’s best interests in mind when making the decision to relocate, choosing to do so often leads to heated disputes between the parents regarding Child Custody. It can become most heated when the moving parent is the one who has custody of the child or children. That parent feels as if they should be able to relocate freely, while the other parent may feel that the access they have to their children should not be compromised. Consequently, the relocation of one parent frequently triggers the filing of petitions for modification of child custody orders. In order to address the issue of parent relocation, many states consider what is in the best interests of the child.
Relocation May Require Modification of Child Custody Agreement
In the 2002 issue of the American Law Institute (ALI) Principles on the subject of parental relocation, the guidelines suggested that relocation should not be considered a substantial change in circumstances warranting the modification of a child custody order. However, the ALI acknowledged that there should be a general exception to this standard where the relocation of the parent would “significantly impair” the visitation arrangement had between the parties. The Principles also establish, however, that a parent should be allowed to relocate if that parent engages in “the clear majority of the custodial responsibility,” and has a valid reason for the relocation. The ALI provides a list of examples as to what should constitute valid reasons for relocation.
Some Valid Reasons for Relocation:
- Pursuit of career opportunities
- Educational opportunities
- Relocating after remarriage
New York Puts Restrictions on Relocation
Presently, many jurisdictions, including New York, have departed from the notion that parents should be able to relocate freely, and have instead opted to determine matters of relocation on a case-by-case basis. The New York Court of Appeals case, Tropea v. Tropea, for instance, stated that, “each relocation request must be considered on its own merits … with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child.” 665 N.E. 2d. 145, 150-51 (N.Y. 1996).
Less than Half of All Relocation Requests Granted by Courts
In the article, Still Partners? Examining the Consequences of Post-Dissolution, Professor Theresa Glennon addresses the topic of which approach to parental relocation ought to be adopted by all states. Glennon points out that very few states assess the interests of the parent seeking relocation. However, she notes that there are some states that will take the parent’s interests into consideration, as the parent’s wellbeing will ultimately have a large impact on what is in the best interests of the child. In many long distance relocation cases, courts are extremely reluctant to grant permission to the party seeking relocation and have in more cases than not, declined to do so. According to Glennon, “Courts granted permission to move in slightly fewer than half-forty-nine percent of the cases [studied] in which a final decision was made.”
Best Interests of the Child Must Be Considered in Relocation Requests
In assessing the best interests of the child standard, all jurisdictions express mixed feelings as to whether children should be relocated away from one of their two parents. Courts have taken into consideration parental happiness, presuming that this factor ultimately benefits the child. However, courts also consider the alternatives that would bear the least detriment to the child’s psychological wellbeing and development. Therefore, many jurisdictions require the relocating party to meet a high burden of proof to establish that moving would be in the best interests of the child. The burden then shifts to the non-relocating party to prove the contrary; that relocation would not be in the child’s best interests. The primary residential custodian often has a fundamental advantage in terms of meeting the burden of proof necessary for relocation in many jurisdictions.
Best Interests of the Child Difficult to Determine in Relocation
It is very common for parties to relocate following a divorce. However, relocation can become very difficult when Child Custody is involved. Parents hoping to rebuild their lives post-divorce feel as if they are entitled to relocate freely, while non-relocating parents feel that the relocation of the other parent would substantially inhibit their ability see their children and be involved in their lives. In order to address this issue, many jurisdictions utilize the best interests of the child standard, although it is not always clear how that is best determined.
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