Geographical Relocation Cases involving Child Custody
At some point in time a divorced couple or a party to a Child Custody Order may run into the problem of having to relocate the subject children to another location and cannot gain the consent of the other parent. Geographical Relocation cases vary, they are tough going, and it often creates great difficulties where the parents are sharing joint residential custody.
The relevant factors on a modification petition to family court asking to relocate requires the court to consider whether there has been an unanticipated change in circumstances so as to permit relocation of the children in the best interests of the children.
In this sort of case, the courts will consider many factors, such as the reasons the party sets forth for the move, the status of the quality of the relationships between the child and the two parents, the impact the move might have on the children’s quality of life, whether the move will interfere with the relationship between the noncustodial parent and the child or children, and whether it is possible to alter the current visitation time to provide near or equalization time between both parents to spend with the subject children.
Other important factors to consider are whether the move will improve or enhance the wellbeing of the children, such as a better job, more family contacts, or financial hardships that make it impossible to stay in the present local. For instance, the moving party has the burden of showing to the Court that, in addition to not affecting the relationship between the children and the noncustodial parent and extended family, that a move will enhance the child economically, emotionally, and educationally.
If you intend on filing a geographical relocation petition in family court, it is always best to do so either after you have a custody order in place or while you are in the process of suing for custody. In the instance where you are in the middle of a child custody case, if you plan on relocating, address this in the context of your custody case so that the Court can decide as to how far you may move. However, if you already have a set custodial plan in place, you must show an unanticipated change in circumstances. If you anticipate a move in a custody case but you have no specific plan in place it is best to file a geographical relocation petition when custody is resolved and when you have a comprehensive plan in place which sets forth the actual address of the planned move, the actual employment opportunity that is available upon executing the move, and the fact that you have a plan to ensure that the noncustodial parent will have the same amount of time to spend with the children that he or she has under the old Order.
Always have a plan to present to the court. The more specific the plan the more likely a Court will seriously consider your petition to relocate. If you are moving on a whim and are using the move to shorten the time the noncustodial parent will spend with the children your plan will surely backfire.
Also, the radius in which you wish to relocate is also relevant. Of course, if you are trying to move out of state your burden of proof in that sort of instance is you must show by a preponderance of evidence that this move is clearly in the children’s best interests.
In settlement negotiations which occur out of court, always ensure there is a radius clause in your agreement. While not ultimately binding, because you still have to file for permission to move, it is one factor a court will consider in allowing the move to another location.
I hope this information was helpful. Remember, this is only information from my perspective as a New York Divorce Lawyer of over thirty years and you should never depend on this as advice since every case is different. Rather, consult an attorney of your choice who is well versed in family law.
By: Your Manhattan Divorce Lawyer
Lisa Beth Older, Esq.