Can a custodial parent relocate the subject children without consent?
This is a complex legal issue that is worthy of exploration.
The Pandemic has caused an increase in cases where a divorcing parent wants to leave the city for a more suburban life. In New York City, the move often involves a request to move to places like Westchester, Long Island or New Jersey.
In the case of H.K. v R.C. 2021 NY Slip Op 21190, 2021, Judge Cooper rendered a decision on an application by the Mother to relocate the children. opinion is uncorrected and subject to revision before publication in the printed Official Reports. In the above case of H.K. v R.C. you will see what factors the Court found compelling in allowing the move. Of course, the starting point in this analysis is whether the proposed move will promote the child or children’s best interests? In arriving at that answer, the Court started by stating that the Court must consider such things as the distance of the proposed move from the current local where the children reside. For instance, a ten-mile location outside the confines of the originating County seems to be more likely to be granted than a fifty-mile move, depending upon the unique circumstances of each case.
In this post-judgment case, the mother wanted to move with her daughter to Westchester County to the city of Scarsdale which is only about 10 miles from New York City. The Defendant lived in New Jersey and opposed the move.
In the resolution of this case, the Court balances the best interests of the child against whether the move would significantly alter the child’s relationship with the Father.
The second issue that was discussed in how you arrive at that determination, whether on paper by way of motion or at a hearing on best interests with the taking of testimony.
Usually, the Courts prefer the more formal approach such as getting an attorney for the child on board, perhaps ordering a forensic evaluation, hand a fact finding or trial. Of course, the children; s preferences can be heard in the form of a Lincoln Hearing which is an in-camera interview with the Judge.
In the case at issue, the Father had only alternate weekend visitation, having chosen during the divorce proceeding to relocate himself to a more suburban community in New Jersey with weekly dinners in New York. There is the facts also showed that the Father did not engage in the child’s daily activities. The Father did all the driving since he exercised his visits in New Jersey. The parties also had a marital agreement disallowing relocation from New York City absent the consent of the father.
The Mother tried to persuade the Father to consent to relocation of the child by pointing out that COVID-19 pandemic “has devasted NYC” and that “thousands of families have already left the city, including more than 100 students from [the child’s school] alone.” Plaintiff went on to say that she feared that this [*2]”exodus out of the city” would result in lasting damage to the public school system and otherwise “negatively impact [the child] and his future. H.K. v R.C, supra.
She also told the Father that the child would have a better quality of life because the schools were better and the social atmosphere in the suburbs was superior to New York County.
In that case, the driving distance between the Father’s home in New Jersey and the new residence was not so much longer that it would interfere with his contact with the child. Of course, the Father objected to her proposal, so the matter ultimately had to be decided in Supreme Court.
In the Court’s opinion, the Court started out by citing the case of Matter of Tropea v Tropea, 87 NY2d 727 (1996) which states that children are not property to be dealt with cavalierly and that a best interests approach is necessary in order to decide geographic relocation. The factors listed for consideration in this case start with an analysis of “…the degree to which the child’s life can be made better economically, emotionally, and educationally. “ at 741), the decision makes it clear that courts are free to consider such other factors as the circumstances of the case may require in order to determine what is in the child’s or children’s best interests. The Court found that the arguments as to the “suburban factor,” was very compelling and gave great weight to it, especially since the Father himself chose to move to the suburbs.
Another compelling factor was the Mother’s willingness to assume all of the driving obligations associated with the move, which would better promote the Father’s contact with the child. In the end, the Court allowed the move.
The Court also held that a hearing must be held, with the appointment of an attorney for the child and a forensic evaluator. It held that…“…determinations require a careful and comprehensive evaluation of the material facts and circumstances in order to permit the court to ascertain the optimal results for the child (S.L. v J.R., 27 NY3d 558, 563 [2016]).” This is equally true for relocation cases, where the “weight of the interests as stake” (id.) can be every bit as high as in any child custody proceeding (see Matter of Conroy v Vaysman, 191 AD3d 977, 980 [2d Dept 2021] [“(t)he court erred in not [*4]conducting a best interests analysis under Matter of Tropea. Further, as facts essential to the best interests analysis, and the circumstances surrounding such facts, remain in dispute, a hearing is required”]).
In my opinion, the age of the child is also relevant, as are various other salient factors as discussed above, all of which must be considered by a Judge before allowing for relocation of children. For instance, in New York State an Eighteen (18) year old child is no longer governed by custody law and may reside with whomever he or she desires even though the child support obligation will continue to age 21. However, even a child as young as sixteen has a strong voice as to which parent they wish to reside with, with the exception of the child being unable to make that choice reasonably due to serious problems with his or her choice.
The above discussed case, if nothing else, is interesting and insightful and aptly shows that is no one result for a relocation case, nor in a child custody case and that each case must be considered on its own facts.
I would definitely take a look at the case with the attorney of your choice before embarking on a relocation case.
I hope this information was helpful.
By: Your New York Divorce Lawyer
Lisa Beth Older, Esq.