As a Custodial Parent can I relocate with my children out of state?
Imagine this scenario. You are living with your child, have very poor economic circumstances and are offered a job out of state. The parent of your child(ren) is a good one, he or she visits with them quite frequently and plays a big role. You want to move because of the opportunity that is offered to you and your family. What will the court do?
In Tropea v. Tropea, a New York decision, the Court decided that five factors must be determined before a person is granted that ability to relocate with their child.
REASON FOR THE MOVE
The Court will first look at the parent’s reasons for seeking the move. Let’s assume here that you have hired a lawyer. Your lawyer will argue that you have a new job and thus the move is necessary. The non-custodial parent’s lawyer will question whether the type of job (i.e. pay scale) you are moving to is one that cannot be obtained here in New York.
QUALITY OF RELATIONSHIP BETWEEN CUSTODIAL AND NON CUSTODIAL PARENTS
Secondly the court will consider the quality of the relationship between the custodial and the non custodial parents. If there is a poor relationship between the parents and it appears that the custodial parent would not make an effort to maintain the relationship between the child (or alienate the child) and the non custodial parent after relocation, then the family court might may not allow the relocation. The attorney representing the non custodial parent would argue that the move would harm the child(ren) because parenting time with the child and the non custodial parent will decrease and in the custodial parent will not make best efforts to maintain your relationship with the child because of this poor relationship.
IMPACT THE MOVE WILL HAVE ON THE QUANTITYAND QUALITY OF FUTURE VISITS
Thirdly, the court would look at the impact of the move on the quantity and quality if the child’s future visits with the non custodial parent. Here the custodial parent’s attorney might advise his or her client to offer to the non custodial father expansive visitation rights during times (this mainly involves school age children) that the child is on vacation, i.e. winter, spring and summer breaks. The attorney for the non custodial parent might say that this type of arrangement might be harmful to the child because the visits need to be more frequent and consistent. I think that the court would agree with this opinion.
DEGREE TO WHICH THE CUSTODIAL PARENT’S AND CHILD’S LIFE WILL BE ENHANCED
Fourthly the court is also required to look at the degree to which the custodial parent’s and child’s life will be enhanced, economically, emotionally and educationally by the move. Here, let’s assume that there was domestic violence in the home that the custodial parent and the child witnessed, perpetrated by the non custodial parent, that the job would give the custodial parent a significant pay increase and that the family is moving to a better school district. Here the custodial parent’s attorney would argue that the move is justified because economically the family benefits from the pay increase, emotionally because they are away from an abusive household and educationally because they live in a better school district.
FEASIBILITY OF PRESERVING THE RELATIONSHIP
Finally the fifth and final factor is the feasibility of preserving the relationship between the custodial and non custodial parent and child through suitable visitation arrangements. Here let’s assume that the custodial parent moved wants to move from New York to Hawaii. Let’s also assume that the non- custodial parent works a minimum wage job and could hardly afford rent let alone plane tickets to Hawaii. Here, the non custodial parent’s attorney would agree that visitation between the child and he or she would be virtually impossible and thus it is very unfeasible that any suitable visitation arrangements can be made.
ROLE OF THE ATTORNEY FOR THE CHILD
The attorney for the child represents the child and thus weighs in with the child’s opinion concerning the move. It is the attorney for the child’s job to consult and advise the child consistent with the child’s capacities and have thorough knowledge of the child’s circumstances. If child is able to be a knowing, voluntary and considered decision about relocation, then child’s lawyer is supposed to advocate for this position even if she does not agree with the child. If the child can’t make such a decision then the child’s lawyer can argue a position he or she believes is in the best interest of the child.
One final note. Relocation is a very complicated issue and courts do not look kindly on parents that just pick up and leave without either getting the other parent’s permission or court permission.
If you have any further questions about relocation, please contact me, George M. Gilmer, Esq. a Brooklyn, New York City Family Court attorney.