Can A Custodial Parent Relocate Under NY Law?
Relocation cases can be the most unpredictable of all custody/visitation cases, at least under New York Law. While the United States has always been a highly mobile society, where people’s jobs often require them to relocate out-of-state, this trend has accelerated during the pandemic with many people moving out of the big cities, including places like Staten Island. Now many are moving back. Seeking professional services and assistance can be crucial in navigating these complex scenarios efficiently, often necessitating a quick phone call to a legal expert for guidance. The experience gained from such consultations can be invaluable in forming a solid understanding of potential legal outcomes.
Although I am unaware of any cases, the same principles should apply when someone has an order of guardianship instead of a custody order. The availability of legal assistance services can significantly ease the process for individuals involved, providing necessary support with just a call. An education on the nuances of guardianship versus custody can lead to more informed decisions in such matters.
This article is designed to provide some general information and may help answer some basic questions about New York State law that you might have, but you cannot consider it to be legal advice for your particular situation since circumstances differ between cases. For actual legal advice, you would need to have a full consultation with an attorney, and preferably with a top custody relocation lawyer who is very familiar with New York child custody laws. Such legal services, which can often start with a simple phone inquiry, offer the necessary guidance and assistance to ensure compliance with the law.
While this article deals with cases where the custodial parent is either the mother or father, it also applies where the custodial parent is a legal guardian who is not a parent. Assistance from legal and advisory services is often sought in these instances for clarity and support, especially for residents in boroughs like Staten Island who may face particular local challenges. Legal experience is crucial in navigating these complexities and ensuring an appropriate course of action.
Family law attorneys are often asked by custodial parents if they need permission or consent from the other parent to move with the children. Parents also sometimes have decided to relocate with the children, without asking for permission, and ask if they should give the other parent notice before moving. Professional assistance becomes invaluable for addressing such delicate matters, often initiated with a brief phone conversation. Education in legal protocols can greatly benefit these discussions and decisions.
These types of questions are very difficult to answer, even after a thorough interview. Situations will differ depending on how far the parent wishes to move, whether the move is local or interstate, what the reasons are for the move, whether or not there is already a visitation order, if so, who was the judge who issued the order, the age of the children, if there is an order for joint custody, and countless other factors. Utilizing legal services can assist in better understanding these complex variables, a process which might be simplified by an initial phone consultation.
Overview
If paternity has been established, although different situations, outlined below, may result in different results, it can be said that, in general, in order to win a relocation case the custodial parent will have to prove that the move will be in the best interests of the child or children. The Family Court can consider any or all of the facts that it finds to be relevant in making a decision about whether or not to allow relocation. Experienced legal assistance can enhance the chances of presenting a compelling case, possibly beginning with important details shared over the phone. The experience of professionals can greatly support the evidencing of the children’s best interests.
Custody Relocation When Paternity Has Not Been Established
Some clients are unaware that, unless the parties are married, paternity does not just happen automatically. Legal advice, even initiated from a quick phone call, can illuminate these nuances, ensuring better preparedness for any legal proceedings. The educational aspect of these discussions can help clients understand the formal procedures involved. Under New York State law, if the biological parents are not married to one another, paternity is only established by both parties signing an acknowledgment of paternity, which is a sworn, notarized, and witnessed legal document, usually executed at the hospital, or alternatively by a court order of filiation, now known as an order of parentage.In such legal matters, lawyers play an essential role in ensuring the rights of each party are clearly understood and upheld. They often serve as advocates for their clients, providing counsel on navigating complex legal terrain to protect their interests effectively.
If paternity has not been established, the mother of the child can usually relocate wherever she wants, without anyone’s permission, and she cannot be charged with violating the father’s visitation rights since he has none yet. In some situations, a court may end up ordering her to return. However, this is quite rare. Having access to advisory services can be beneficial for a client in such situations to avoid legal complications, and a lawyer can advocate on their behalf to provide counsel on all available options.
I did have a situation some years back where I was referred a youngish woman who had been having an affair with her boss, and became pregnant by him, but the relationship had turned ugly and she wanted to know what to do. As it turned out, she had relatives in Hawaii, and could have easily moved back and given birth in Hawaii and probably would have never had to deal with the man again. In this scenario, effective legal counsel could have equipped her to make informed decisions with a clear understanding of the implications.
She didn’t hire me, and even after the child was born, she didn’t leave the state for several months, but eventually, she did move out and went to Hawaii with her child. Engaging proper legal services might have assisted her in handling the situation differently and with greater peace of mind. At that time paternity had not been established, but according to what she later told me, the father served a paternity and visitation petition by mail either the same day she moved out or shortly thereafter. She ended up hiring another child custody attorney, whose lack of proper guidance and representation basically screwed the case up, leading her to return to New York to face a hostile court. Eventually, she lost custody. This highlights the critical importance of competent advocacy and sound legal counsel in such delicate matters.
On the other hand, I have had many cases where the mother moved out of state with the child after paternity was established without permission of the father, without giving him notice she was moving, and even in violation of a court order, and for various reasons the father was unable to convince the New York Court to do anything about it. Strong advocacy from competent lawyers often plays a critical role in protecting the interests of the client, ensuring that their rights and positions are articulated and defended effectively.
Relocation When Paternity Has Been Established
Once paternity has been established, the father of a child or children has rights, even in the absence of any court order for visitation. Representation from a qualified attorney can be crucial in these matters. At least in New York City, if there is no visitation order, it will rarely be a problem for the mother to move to another borough, even over the other parent’s objection. I have seen one or two oddball cases where the judge refused to allow the mother to relocate out of the immediate neighborhood, but these are quite rare. As long as there is no visitation order, she can probably move a short distance away even though she crosses county lines or even state lines. She might be required to give a decent reason for the move, and the right counsel can advocate effectively for her.
Mothers in these situations must avoid giving the appearance that the move was done in bad faith, in order to limit the father’s access or to gain some kind of tactical advantage. Consulting with experienced lawyers can help ensure that all actions taken are in the best interest of the client and maintain the integrity of their case. Legal counsel provides not only advice but also advocates for the client’s intentions to be understood by the court.
When dealing with high-net-worth families, the courts seem to sometimes give fathers more visitation rights, and I even had a case where the court required the mother to remain in the public school district in Manhattan because the children were in an “excellent school”. The needs and values of the community often play an essential role in such decisions, influencing how courts view the importance of maintaining stability for the child. Legal professionals who advocate effectively can help navigate these complicated scenarios.
Finally, most NY courts will give significant weight to the preference of older children and will be very hesitant about sending older children to live in new homes against their wishes. Relocation where there are siblings with different preferences can be extremely difficult for the courts to decide, as well as cases involving children with special needs. In these cases, having an advocate to counsel both the client and court on the best actions can be invaluable.These types of cases may require full forensic evaluations and guidance from experienced professionals to ensure the best interests of the children are met, keeping in mind the support systems available within their community. Specialized proficiency in understanding community influences and family dynamics can be an invaluable ingredient in achieving favorable outcomes.
When there is a visitation order in effect, whether it is a temporary order or a final order, the mother will probably be allowed to relocate with the child or children as long as she stays close enough so that the father’s visitation is not affected. This is a tricky situation, though, if she does not get permission from the court or have consent from the father in writing, especially if she moves a considerable distance from the established community. Neurotransmitters within the brain can play a role in the emotional stresses both parents might feel due to such changes.
Relocation When There Is A Court Order
Some Judges may be unhappy to learn that the mother has moved to nearby New Jersey or Long Island without the father’s consent or without asking the court’s permission first, even if she continues to comply with the visitation order. While most judges are reluctant to order her to move back, some might, and other courts will require her to be fully responsible for taking the child to the father and returning the child to the father, as well as bearing all the transportation costs, emphasizing the community’s role in facilitating visitation. Adults involved in these cases must navigate the situation carefully, always considering the children’s health and wellbeing.
If the children are of school age, and there is a very involved father, who wants to go to the child’s school, attend PTA meetings, extracurricular activities, and meet with the teachers in person, this could create a situation where the court could order her to move back closer to the father. The community’s involvement and the ability to participate in such activities can heavily influence the outcome of these relocation cases, acting as a critical ingredient in maintaining family bonds.
Here, I am talking about situations where the mother wishes to move to another state that is too far away to allow the father to have “normal” regular visitation time. In such cases, proper legal representation and careful guidance are essential to navigating these complex issues effectively. For example, the parents were living in New York but the mother wants to move to Florida, California, or Texas. Occasionally, the custodial parent may want to move to a distant country. These cases will dramatically affect the living arrangement of the child or children and can cause major disagreements between the parents. They are also the cases where it is often very difficult to predict the outcome. In such situations, possessing negotiation expertise can be crucial as it may help the parents reach a mutually agreeable decision, though ultimately, these cases can often require the court to make some very difficult decisions, taking into account the community’s influence on maintaining familial connections.
Relocation Cases Where Custodial Parent Wants To Move Out Of State
If the custodial parent is in the military or has a spouse who is in the military, the relocation may be pursuant to the custodial parent or the custodial parent’s spouse having employment responsibilities which require the relocation. The impact of leaving an established community may be considered, particularly in assessing how the move aligns with the best interest of the child. The involvement of adults familiar with the legal intricacies can significantly aid in adapting to new circumstances while prioritizing the health and welfare of the children.
Here, the expertise of a legal professional may also assist in navigating such specialized circumstances.
In New York, Courts have wrestled with these cases for many years, and the primary case on the issue is Tropea v Tropea, a case from New York’s highest court. The Tropea case was followed by numerous other cases which sought to explain what exactly Tropea meant, as it was a somewhat convoluted case.
In sum, the legal standard under Tropea is the same standard for the majority of all custody and visitation cases which is the “best interests of the child”, however, Tropea spelled out a number of factors that courts were required to consider in deciding best interests. Here, the negotiation between parents can again come into play, aiming to align their interests with the child’s best interests, ensuring a balanced approach that accommodates the health and developmental needs of the children involved.
Statistics have shown that mothers are most likely to be allowed to relocate when they are doing so to escape from a violent ex-husband or ex-boyfriend, or where the father is not paying child support and the mother cannot afford to live decently in New York due to the high costs of living.
Some mothers mistakenly believe that they can win their case just by asserting that the lifestyle is better in another state, that the schools are better, that the crime rate is lower, or that they will have better job opportunities there.
If the noncustodial parent is uninvolved, abusive, or if the child or children are mature teenagers and have a strong desire to move, this may be the case, but otherwise, the relocating parent will likely have to produce actual and admissible evidence that the schools are better, or if her rent is too high, she may be required to show proof that she has made serious efforts to look for cheaper housing in other parts of the Tri-State area before considering moving so far away that the father’s visitation schedule and parenting would be impacted. Expertise in collecting and presenting such evidence can be pivotal for the success of the relocation request.
Relocation cases where there are involved fathers may require a forensic evaluation and a lengthy trial, and, as stated, it is difficult to predict the results, even if you know the judge quite well.
It is common, especially when there has been a divorce, for there to be a custody agreement and visitation agreement which includes a clause that restricts the rights of the custodial parent to relocate with the child or children. These clauses are often called “radius clauses” as they typically allow the custodial parent to relocate within a geographical radius without consent of the noncustodial parent (almost always in writing) or a court order.
Cases Where There Is A Written Agreement With A Relocation Clause
It is common, especially when there has been a divorce, for there to be a custody agreement and visitation agreement which includes a clause that restricts the rights of the custodial parent to relocate with the child or children. These clauses are often called “radius clauses” as they typically allow the custodial parent to relocate within a geographical radius without consent of the noncustodial parent (almost always in writing) or a court order.
In these cases, it would be extremely dangerous for the custodial parent to relocate in violation of the clause, and even more dangerous if this is done without any notice to the noncustodial parent. Consequences of blatant violations or court orders can result in sanctions, even including jail time, or transfer to custody. Expertise in legal negotiation and understanding the implications of such clauses is essential for guiding the custodial parent through the process effectively.
Serving All Staten Island Neighborhoods
I represent parents and families across Staten Island, including Grasmere, Clifton, Stapleton, St. George, Tompkinsville, Dongan Hills, South Beach, Midland Beach, New Dorp, Oakwood, Great Kills, Eltingville, Annadale, Arden Heights, Huguenot, Prince’s Bay, and Tottenville. All Staten Island Family Court cases are heard at 18 Richmond Terrace, Staten Island, NY 10301.
About Paul W. Matthews, Esq.
Paul W. Matthews is an experienced Staten Island family law attorney with more than 25 years of trial experience in New York Family Courts. He has handled hundreds of cases involving child custody, visitation, paternity, child support, and Family Court orders of protection.
He represents clients throughout Staten Island from his office near Grasmere and also maintains a Manhattan office at 90 Broad Street in the Financial District for parents with matters in Manhattan or Brooklyn Family Court.
Paul personally answers his own phone and provides direct, individualized representation in every case. His practice emphasizes clear communication, practical strategy, and strong advocacy in custody, visitation, support, and parentage cases in the Staten Island Family Court at 18 Richmond Terrace.
Call Paul directly: (347) 461-0760