Understanding Relocation in a Divorce Case - NY State Law

Relocating a home post-divorce with children can be a difficult situation emotionally and legally.

Hi, I’m Roberta Feldman, and I am an attorney with Gray & Feldman in Penfield, NY. I am going to talk today about the issue of relocation in a divorce or, what we refer to, as a post-divorce case. 

So for example, if you have been divorced and you have children, many people wonder whether they can move from their current home, someplace else, either close by or in the county or out of state. So the first principle is that no court or judge can restrain a parent from moving. The question is, how does that move affect the relationship and contact by the other parent with the children?  

You might have a custody agreement, a parenting agreement, and many of them provide for regular daily or weekly contact with the other parent. So for example, if you live in Penfield, and you want to move to Canandaigua, for example, how is that going to affect the access and the relationship of the children with the other parent? So that one, probably, is do able, and makes sense, and as long as the 2 parents agree, then that would be something that could change. However, let’s say you want to move to Syracuse or New York City or Texas, so how does that affect the relationship of the children with the parent who is not moving? So in that case, if the other parent doesn’t automatically agree, then either you and the other parent need to try to work something out, or you then file in court and make your case as to why this move is in the best interest of the children. And that is the standard, “Best interest of the children.” 

There was a Court of Appeals case, which is the highest court in the state, called Tropea vs. Tropea, which took place and was decided in 1996, and that case made then referenced “…best interest of the children…” And there are, as in an initial custody determination, many factors to consider. But if you’ve had a period of time where the 2 parents have had contact with the children, or maybe little contact with the children, then you have a history of that contact to present to a court if necessary. 

So there are examples of how to make such a move and how to present such a case, and many factors come into play. For example, economics: how is the move benefitting the family financially? How about health related concerns? What if a child has asthma or some other medical condition, and you’re moving to a place where it would be much better for the child? Or a parent may have remarried, maybe their spouse has a new job elsewhere, or the spouse has family elsewhere and there will be family support? We also look at a concept called “parallel moves” where the other parent decides to move nearby where the parent seeking to relocate moves. And that has been done, and is feasible and possible, and may send a good message to the children that their parents are on the same page and there for them. I’ve also had cases where a summer vacation or school vacations may be substituted for the regular weekly vacations, and therefore a parent may provide financial incentive to fly the children to Rochester or cover the cost of hotel for the other parent to visit. So there are ways it can be done, but it is usually an uphill battle to take a child away if the other parent has been involved and accessible and active on a daily or weekly basis. 

So if you’re looking to move beyond an hour or so, that will be an uphill battle. So this is something in our society today with people moving and the lack of family support nearby, this is a common question and something I have dealt with many times over the years. 

So if you would like further information on this topic or any other family law matters of interest to you, please visit our website at www.gfrllp.com