Can One Parent Relocate with Children During or Post-Divorce?

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by | Sep 3, 2019 | Blog, Child Custody, Divorce

A big fear in divorce is the prospect of losing your children. Child custody matters are very stressful. If you and your spouse cannot come to an agreement, it is left to a judge to decide who has primary physical custody, how much time each of you has with the children, as well as how you will make decisions about your children’s education, healthcare and religious upbringing. These matters can be made even worse if one parent wants to relocate to another area with the children. A move can affect the parent-child relationship significantly. If parents cannot resolve the relocation dispute, it will go to the judge who looks at several factors which vary depending on whether a child custody agreement already exists.

If there is no child custody agreement, a judge first must decide the matter of child custody. While New York policy is to promote joint custody, where one party seeks to move out of the area, joint custody is not feasible. Courts utilize a best interests of the child standard in deciding where and with whom the child should live. Relevant factors include:

  • Which parent has been the main care giver/nurturer of the child
  • The parenting skills of each parent, their strengths and weaknesses and their ability to provide for the child’s special needs, if any
  • The mental and physical health of the parents
  • Whether there has been domestic violence in the family
  • Work schedules and childcare plans of each parent
  • The child’s relationships with brothers, sisters, and members of the rest of the family
  • What the child wants, depending on the age of the child
  • Each parent’s ability to cooperate with the other parent and to encourage a relationship with the other parent, when it is safe to do so

The courts do not favor one party over the other and will weigh the above factors to decide who is best suited to take care of the child.

In contrast, different rules apply where the request to relocate comes after custody has been decided and a custody agreement is in place. If the custodial parent wants to relocate, he/she must request permission from the court if the other parent objects. The court will then decide whether relocation is in the best interests of the child. In other words, the judge will not reevaluate who should have custody based on the factors outlined above. He/She will look at only the relocation issue and whether the child is best served by moving.

The relevant factors in deciding whether to allow relocation include:

  • Each parent’s reasons for seeking or objecting to the relocation
  • The quality of the relationship between the child and each parent
  • The impact of the move on the quantity and quality of the child’s future contact with the non-custodial parent
  • The extent to which the custodial parent’s and child’s lives will be enhanced financially, emotionally, and educationally by relocating
  • The feasibility of preserving the relationship between the non-custodial parent and the child should the relocation be granted

The preference is to maintain where the child is presently living, but the court will compare the existing location to the new location in terms of how it will disrupt the child, neighborhood, school district, friends/family nearby, etc.

The court will look to support the continuing relationship of the child to both parents, but may allow relocation where the factors weigh in that favor.

If you are seeking to relocate with your children or you are fighting relocation, contact us for assistance.

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