Relocation cases can be the most unpredictable of all family law custody/visitation cases, at least under New York Law. Since I am only admitted in New York and do not practice in other states, and I know that laws can differ in other states, I do not have any special knowledge about how courts handle these types of cases in other states, however, I have tried many relocation cases in the New York Family Court.
This article is designed to provide some general information, and may answer some basic questions 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 experienced attorney who is very familiar with New York child custody laws.
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, a sworn , notarized, and witnessed legal document, which is 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 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 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 had the child 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 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 either the same day she moved out or shortly thereafter. She ended up hiring another lawyer 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 and even in violation of the father’s visitation orders, and for various reasons the father was unable to get the New York Court to do anything about it.
Relocation When Paternity Has Been Established
Once paternity has been established the father of the child 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 never be a problem for the mother to move to another borough. I have seen one or two oddball cases where the Judge has 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 it 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 rights, and I even had a case where the Court required the mother to remain in the school district in manhattan because the children were in a “excellent school”.
Relocation When There Is A Court Order
When there is a visitation order, whether it is a temporary order or a final order, the mother will probably be allowed to relocate 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.
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 will usually not 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 or Texas. These are the cases where it is often very difficult to predict the outcome. These cases can oftentimes require the Court to make some very difficult decisions.
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 boy friend, or where the father is not paying child support and they cannot afford to live decently in New York due to high costs of living.
Some mothers 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 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 access with the child would be impacted.
Relocation cases where there are involved fathers usually 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 custody agreements and visitation agreements to include a claue which restricts the rights of the custodial parent to relocate with the child or children. These cases 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 writng) 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.
Each parent should retain their own skilled family law attorney, preferably one who has done many custody, visitation, and relocation trials.
I have done many child custody cases and have a lot of experience with relocation cases and I offer a free initial phone or video consultation.