At Gilmer Law Firm, PLLC in Brooklyn, we know that some of the hardest custody battles happen when a parent wants to relocate with children. Moves out of state—or even out of the country—can disrupt a child’s routine, strain relationships, and force courts to decide between parental rights and the child’s stability.
In one landmark New York case, courts disagreed about whether a custodial mother could move overseas with her children after remarriage. The higher courts focused too much on the father’s visitation rights and not enough on the children’s stability, best interests, and the question of parental fitness. The dissenting judges, however, understood the law and the needs of children far better.
If you’re facing similar issues, working with an experienced New York Family Court appeals attorney is essential to protecting your rights—and your child’s well-being. Learn more about our family law practice and how we can guide you through these complex disputes.
The Relocation Dispute
- The mother, who had custody of three children under a divorce judgment, remarried.
- Her new husband’s employer offered a two-year assignment in France. She sought to relocate abroad with the children.
- The Family Court allowed the move, adjusting visitation so the father could have extended summer time and travel accommodations.
- The Appellate Division reversed, prohibiting the move and granting temporary custody to the father.
- The Court of Appeals affirmed, even though the father never proved he was fit to assume full custody .
For parents wondering about the limits of relocation, see our guide on how to win a relocation case in New York.
The Dissents: Putting Children First
Two dissents exposed the flaws in the majority rulings:
- Justice Mangano (Appellate Division) emphasized that stability with the custodial parent should not be disrupted without clear evidence of harm.
- Judge Meyer (Court of Appeals) stressed that custody cannot be transferred merely to enforce visitation. He noted the father had not shown he could adequately care for the children, while the children had always lived with their mother. He warned that punitive custody transfers punish parents instead of protecting children .
Parents often ask: Can a parent prevent the other parent from moving out of state with the children? The answer is complex, and our detailed explanation is available here.
Four Principles in Custody Relocation Appeals
The dissents highlight the four principles that should always guide relocation and custody appeals in New York:
- Stability – Children need continuity in their primary home, and disruption should never be ordered lightly.
- Best Interests of the Child – Custody decisions must center on the child’s welfare, not a parent’s grievances.
- Parental Fitness – Custody should not shift unless the noncustodial parent proves they can provide consistent care.
- Relocation – Moves can be disruptive, but they must be weighed against both the custodial parent’s rights and the child’s need for stability.
For additional context, the New York City Bar Association explains how relocation factors are evaluated in custody disputes.
Lessons for Parents in Relocation Cases
If you’re a parent facing a relocation or custody battle in Brooklyn or anywhere in New York, remember:
- Custody should not change simply because a parent relocates.
- Parental fitness must be proven by the parent seeking custody.
- Appeals can correct errors when courts misapply the law or overlook a child’s need for stability.
Our firm has written extensively on this issue, including practical strategies for appealing a Family Court decision in New York. As a New York Family Court appeals attorney, I have seen firsthand how relocation disputes are mishandled—and how strong appellate advocacy can restore focus to the child’s best interests.
And for a parent-focused perspective, Woman’s Divorce also offers an overview of relocation and custody challenges.
⚖️ Important Tip for Parents
Moving without court approval can cost you custody.
Even if there’s no custody order in place, relocating a child out of state can trigger serious legal consequences. The other parent can file for custody or seek a writ of habeas corpus to bring the child back before the court. Judges may switch custody if they find your move interfered with the child’s relationship with the other parent.
👉 Always speak with a New York Family Court attorney before making relocation plans.
FAQs About Custody and Relocation in New York
Q: Can a parent move children out of New York without the other parent’s consent?
A: If there is no existing custody order, a parent may technically move out of state with the child. However, this is risky. The other parent can immediately file for custody in Family Court, and the court may change custody if it finds the move interfered with the child’s relationship with the non-moving parent. In addition, the noncustodial parent can file a writ of habeas corpus to compel the child’s return to court. If there is already a custody or visitation order in place, relocation without permission is prohibited and can result in sanctions or a change in custody.
Q: What does the court look at in a relocation case?
A: Courts weigh stability, the child’s best interests, the good faith of the relocating parent, the feasibility of preserving visitation, and the parental fitness of both parents.
Q: Can custody be changed just to preserve visitation?
A: No. As the dissent in Daghir explained, custody should not be transferred merely to enforce visitation. Custody changes must be based on the child’s best interests, not as punishment against a parent.
Q: How can a New York Family Court appeals attorney help in relocation disputes?
A: A New York Family Court appeals attorney can challenge trial court errors, highlight gaps in evidence (such as lack of proof of parental fitness), and ensure that the appellate court considers the child’s stability and best interests above all else.
Final Word
The Daghir case is a reminder that relocation battles test courts—and sometimes courts get it wrong. By focusing too much on visitation, the majority ignored the children’s need for stability and proof of parental fitness. The dissenting judges applied the law correctly and kept the focus on the best interests of the child.
For parents, it’s important to understand that moving a child without court approval can backfire. Even if there’s no order in place, the other parent may file for custody or a writ of habeas corpus, and the court could transfer custody if it finds your move unfairly disrupted the parent-child relationship.
If you are facing a relocation dispute or custody appeal in New York, the stakes couldn’t be higher. As an experienced New York Family Court appeals attorney, I can help you challenge rulings that don’t serve your child’s well-being—or defend against claims that your relocation was improper. Contact Gilmer Law Firm, PLLC in Brooklyn today to protect your family’s future.
