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Thursday, December 23, 2021

How do you win a relocation case in New York? Written by a Family Law Custody and Divorce Attorney

As a New York Family Law and Relocation Attorney at the Gilmer Law Firm, PLLC I have litigated many cases where a parent wants to relocate with a child.  This article is for parents that want to relocate although I have represented parents on both sides.

In order to win a relocation case you must convince the court whether the move will be in the best interests of the child. All of the relevant facts and circumstances of the case will considered by the Supreme (in a Divorce proceeding) or Family Court.  Although the rights of the parents will be considered by the Court, the most important consideration are the rights and need of the child because they are the innocent victims of their parent’s divorce or separation and are the least equipped to handle the challenges of their changed family situation. 

 

The Courts have held that the best interests of a child lie in being nurtured and guided by both parents and a non custodial parent has an equal right parenting time. This right is fundamental to the growth and nurturing of the parent-child relationship. 

 

The Family Court or Supreme Court has a responsibility to set a visitation schedule that results in frequent and regular access by the noncustodial parent. A parent is entitled to meaningful access to the child. A parent may not be deprived of meaningful access to the child unless there are exceptional circumstances, like the child would be in danger if visits were to occur.

 

In determining whether what is in the best interests of the child the court will consider a number of factors. When the Court is to decide what the best interest of the child is they will consider the parent’s past performance, fitness, willingness to foster a relationship between the child and the other parent, the ability to maintain a stable home environment and to provide for the child’s overall wellbeing.

 

Specifically, in deciding whether a parent can relocate and that it is in the child’s best interests to do so, the court will consider the distance involved, the number off visitation hours lost, the frequency of visitation in the event the move takes place, how frequently the non-custodial parent exercised visitation in the past and the quality of the relationship between the custodial parent and the non-custodial parent with child in the past. The court will also look at the motives behind the move and justifications behind the move, the planning done before moving to ensure the non-custodial parent has reasonable access to the child, the relationship of the parents, the quality of the life the child will have if the move is permitted and the effect that the move may have on any extended family relationships. There may be other factors as well.

 

 In order to win your relocation trial you will need to present facts regarding these factors and prove them by the preponderance of evidence. The Court does not consider one factor more important than the other and makes a decision based upon the totality of the circumstances.I will analyze below these factors and how you can prove them at trial. It is best to hire a Family Law Attorney that does relocation cases in order to put your best case forward.

 

How to win your relocation case

 

  • Frequency of visitation. It will be your burden to prove that you have a plan to ensure that the non custodial parent gets meaningful access to the child if you are allowed to move. In cases where the parental relationship between the child and the non-custodial parent is good then meaningful access may look like the parent getting visits during winter and spring breaks and extended time in the summer and provisions made to split major holidays.  You may have to offer to be responsible in paying for the cost of transporting the child. If you don’t believe the schedule mentioned above is appropriate and want to give the non-custodial parent less time you will need to prove that that parent didn’t spend and adequate amount of time with the child in the past and was not meaningfully involved in the child’s life.
  • Relationship between the custodial parent and the non-custodial parent with the child in the past.  Here if you can show the Supreme or Family Court that as stated above the parent hasn’t been involved in the child’s life or that the child is not that attached to the other parent this can help your case for relocation.  Proof that you have been the primary caretaker for the child and have made the major decisions regarding the child’s life is important. This includes who has taken the child to doctor’s appointments, attended PTA meetings, does homework with the child and other things necessary for parenting. In preparation for a relocation case it is wise to keep a log of these activities and show the to your Family Law Attorney. 
  • Motives and justifications behind the move.  The Court will want to make sure that you are not moving to deprive the non-custodial parent access to the child. Therefore, if reasons for the move are economic (for instance you have found a better paying job in another state) you will need to show your efforts to obtain employment with similar terms to the job you can get in another state and that you were unsuccessful in doing so. You can keep a job search diary as proof.  If the reasons are better schooling for your child, then you will need to show that the school district where you intend to move outperforms the child’s current school district in terms of student success, student safety access to extracurricular activities etc.  If the reasons are because of better housing, you will need to show that your are currently having difficulty obtaining housing in the state you live in because of high rents and that the rents of where you are planning to move to are much less. If the neighborhood you want to move to is much safer than the neighborhood you want to leave, presenting statistics of this would be a good idea. If their are more opportunities for the child to have extra curricular activities in the new place this is important. If the reasons are because you got married or are getting married and your spouse can get a better job in the state you want to move to, your spouse also needs to do a job search diary and show he can’t find a comparable job in the state you are currently living in. Getting job search diaries and information regarding school performance requires the expertise of a Family Law Attorney because the rules of evidence can be complicated.
  • Planning before the move.  If you don’t come up with a visitation plan and do your research on available jobs, school districts etc. you will have a very hard time justifying the move.
  • Distance involved. If the distance you are moving will prevent the parent from seeing the child then the court most likely will not grant you permission to move. You need to show that you have thought about the arrangements needed for the parent to see the child and have a plan for this to happen. You have to convince the court that the distance will not deprive the parent of meaningful access.
  • Relationship of the parents.  You will need to show that you are in the best position to encourage the relationship between yourself and the other parent.  If the other parent has made co-parenting very difficult by constantly arguing about or disagreeing with you over things you want to do for the child that are in the child’s best interests, you can show proof of this in court. Proof of this may consist of text messages or emails between you and the other parent or voicemail messages left by the other parent where he was being difficult. If the other parent has perpetrated domestic violence against you, you need to submit proof of this. If you are a victim of domestic violence it is best for you to obtain an Order of Protection, but you don’t have to have one if you have sufficient proof of the acts committed against you. Sometimes the only proof you may have is your word against his, although not optimal, the Court may believe your story. If the Court finds there was domestic violence in the home while you and the other parent lived together this could most  certainly impact the terms of your relocation. This is because domestic victim survivors often move away to start a new life and it is not in the best interest of a child to be around violence.
  • The affect the move has on the extended family. If you move to a place where you have more support from family members to help you with the child, this can be a positive factor for relocation. If you have no family members where the child currently resides and you do in the location you want to move to, this may have an impact on whether you can move. If the are family members in the original state of the non-custodial parent but they have not been involved in the child’s life, this is an important fact to bring forward.
  • The quality of life the child will have if the move is permitted.  This takes into consideration many of the above factors.  The child’s quality of life will depend on the type of school he is in, the access to other family members, the amount of money the household brings in, the living arrangements, the safety of the neighborhood and the other factors that positively contribute to the child’s life.  As stated above, relocations can be complicated so it is wise to hire a Relocation Attorney that specializes in family law to help you win your case.

 

In order to start a relocation case you will need to file in New York Family Court a Petition in the County the child has lived in for the past 6 months or more. On the Petition you will put the biographical details of you, the other parent and the child. You will also state in this petition why it is in the child’s best interests to move. You will list reasons why. You will receive a Summons with the next Court date once filed. You or your Family Law Attorney will hire a process server to serve the other parent with the Summons and then the Petition at least 8 days before the Court date. The first Court date will be a conference, and you will have multiple conferences before trial. A lawyer for the child will most likely be appointed and they will give their option on whether the move should take place. You might also want to submit an expert opinion of a clinician that approves of the move.   If you are going through a divorce you will file a Summons with Notice and state in the Summons that you want the Court to determine wether you can move. As above you have to serve the document. You will the need to request a Court date 45 days after the service of the Summons with Notice if the divorce is contested.  As above a lawyer for the child will be appointed, and paid for by both parents based upon their respective incomes, and you can also submit expert opinions. If you don’t settle and the case goes to trial you will be required to prove by the preponderance of the evidence that the relocation is in the child’s best interests according to what is detailed above. 

 

For twenty years at the Gilmer Law Firm, PLLC I have successfully represented parents in relocation matters. I hope this article was informative. If you have any questions or need representation feel free to contact me at 718-864-2011 for a free phone consultation.

 

 

 

 

 


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