One of the most common kinds of child custody cases to be determined by New York family court judges is known as relocation custody or “away custody.”
These are situations wherein the parent with primary custody, following a dissolution of marriage or child custody order, seeks to relocate with the child either out of the local jurisdiction or sometimes out-of-state, in opposition to the other parent’s wishes. Brooklyn child custody lawyers know that the courts will not take these matters lightly, and they will be decided, per the standard set in the 1996 New York Court of Appeals case of Tropea v. Tropea, based upon what is in the best interest of the child.
The fact that a parent has sole custody will not be reason enough for the court to approve a significant move with the child where the other parent is against it. This was illustrated more recently in the case of Steffy v. Steffy, which was reviewed by the Nebraska Supreme Court. Although this claim was made in a different state, Nebraska follows the same general legal standard as New York in these matters.
According to court records in this case, the two parents were married in 2001 and their son was born in 2003. The mother was an active military member, assigned to duty at an Air Force base in Nebraska. Neither party had relatives in the area.
In 2008, the couple divorced. The father was granted primary legal custody of the boy, with the mother receiving visitation and ordered to pay child support. The father had been active-duty military as well, but after retiring, earned a degree in childhood education and began working as a substitute teacher. However, he was unable to secure a full-time teaching position in Nebraska. The father remarried, and his wife worked as a full-time teacher in the district where they lived.
The mother routinely exercised her visitation rights with her son, who was diagnosed with autism. The boy was on a specialized education plan at his school and, by all accounts, had been doing very well.
Then in late 2010, the father petitioned the court for a modification of the child custody plan, with a request that he be allowed to relocate to Texas, where his opportunities to find a full-time teaching position would be more ample. The mother resisted.
At a bench trial on the matter, the father presented an expert behavioral witness, who testified that the educational resources for the boy would be greater in Texas as well.
Additionally, the father indicated that he has family located in Texas. He indicated that if the move were allowed, he would continue to accommodate the boy’s visitation with his mother because he viewed their connection as important.
Meanwhile, the mother indicated that she had no plans to leave Nebraska or the military, and that she wanted to vehemently protect her visitation rights with her son. She feared that his education would be disrupted, and that she would no longer be able to take him for frequent visits to her sister’s home in Missouri, as she had done during extended visitations.
In its ruling, the court upped the child support payments owed by the mother, but denied the father’s request, indicating that he had not met the burden of proof necessary to show he had both a legitimate reason to move and that it was in the child’s best interest. The court indicated that the father’s job opportunities out-of-state were speculative, and further there was enough evidence indicating the child’s educational needs were being met in Nebraska. Additionally, a move could be difficult for the boy, and would serve to strain the relationship between both parents.
The father appealed.
The appellate court reversed the decision, siding with the father. That court found that the move would enhance the boy’s quality of life, not significantly impact his mother’s visitation schedule and was not motivated by malice on the father’s part.
The mother appealed.
The state supreme court reversed the appellate court’s findings, indicating that the district court did not plainly err in determining that the father had failed to prove the move would be in the child’s best interest. The case was remanded back to the district court for further proceedings.
As this case illustrates, away custody can be quite complex, and prevailing requires an attorney with experience across a broad range of child-custody issues.
Contact our Brooklyn child custody attorneys at (718) 864-2011.