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. Now many are moving back.
Although I am unaware of any cases, the same princicples should apply when someone has an order of guardianship instead of a custody order.
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.
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.
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.
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 there 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.
If paternity has been established, although different situations, outlined bbelow, may result in differeent 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 decidion about whether or not to allow relocation.
Custody Relocation When Paternity Has Not Been Established
Some clients are unaware that, unless the parties are married, paternity does not just happen automatically. 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.
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.
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.
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. 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 who basically screwed the case up and she returned to New York to face a hostile court. Eventually she lost custody.
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.
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. 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.
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.
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”.
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. These tpye of cases may require full forensic evaluations.
Relocation When There Is A Court Order
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.
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.
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.
Relocation Cases Where Custodial Parent Wants To Move Out Of State
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. 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. These cases can often require the court to make some very difficult decisions.
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 paren’s spouse having employment responsibilities which require the relocation.
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.
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 life style 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 teen agers 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.
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.
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 custody agreement and visitation agreement which includes a clause which 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.