What Constitutes Relocation Under Family Law In New York?
New York does not have a hard and fast definition of relocation. But if there is a prior order pertaining to parenting time, and the custodial parent either moves or contemplates a move that would affect the parenting schedule or travel arrangements, the courts will analyze the matter as a relocation case.
Do I Need A Valid Reason, Such As Employment, To Relocate With My Child?
One needs to prove that it is in the child’s best interest to allow the relocation. It is difficult to imagine how one could meet this burden without a valid reason for the move. The court must balance what the child will gain from the move against what the child will lose from the move.
It is not always easy to balance the competing gains and losses of the relocation. For example, the child might gain increased family income from the move if the parent or new spouse will gain improved employment. But one might lose having both parents attending school plays and athletic events. There is no absolute method a court can employ to measure the values of these very different virtues against one another. How much extra income into mom’s house overcomes dad not being able to cheer on a child during athletic events? There is no great answer to this question, yet issues like this is what the court must balance.
How Far Can I Move With Joint Custody Without Having To File An Order With The Court?
If you have an agreement or order that sets a distance, the answer is easy: the agreement or order governs. If the agreement or order in place is silent, the answer is far more complex. I think the touchstone should be either (1) does the move make the parenting schedule more difficult or impossible to follow; or (2) does the move alter the child’s life.
If one moves closer to the other parent’s home, it is difficult to see how this will complicate the parenting schedule. But a twenty miles move away from the other parent, especially on winter roads, could interfere with midweek visits and attendance at school events.
Likewise, a move of just a few miles might require a school district change.
I advise custodial parents considering a move to (1) see if they can secure written consent from the other parent, or otherwise (2) seek judicial approval before the move. Rather than being confronted with an order to return or face loss of custody, most parents would rather know if advance whether he or she can move with the child.
What Is The Process To Petition For A Relocation?
Assuming one has hired a lawyer, the lawyer will draft a petition either seeking permission to relocate or seeking to oppose the relocation. If one does not have an attorney, one would file the petition in the Family Court. The court will create a pleading with service instructions and a date to appear in court.
How Much Advance Notice Must Be Given By A Parent Who Intends To Relocate A Child?
If the order or agreement in effect answers this question, then the order or agreement governs. If the order or agreement is silent, one needs to keep a watchful eye on how a court would see the notice when the inevitable litigation commences.
For example, if a custodial parent gives three days’ notice on the afternoon of Christmas Eve that he or she and the children will be moving to France, I would be very concerned about a judge’s reaction to that notice. It is unreasonable to believe the other parent could obtain legal advice and protect his or her rights in that time frame.
But if one gives notice at the end of the school year that one intends to move to the adjoining school district by Labor Day, I would not be highly concerned about the judicial reaction when we appear in court in October.
Another factor to consider is when does the parent who seeks to relocate receive notice of the opportunity or need. For example, if one learns his or her job is about to move to another state, that is when one should give at least a tentative notice.
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