Relocating With Children After Divorce

After a divorce is final, the issue of child custody and visitation may be renewed. Typically the noncustodial parent will be allowed to see their child(ren) once a week, and every other weekend, with provisions for summer breaks and holidays. Trouble may arise when the custodial parent wants to relocate to a locale which may interfere with the noncustodial parent’s visitation. Though it is well settled that the residential parent is free to relocate where ever they so desire, this does not necessarily mean that they can also take the child(ren) in question.

In New York, relocation cases are no longer measured by a particular formula or a set of presumptions which must be proven. Instead, each case must be considered on its own set of facts and circumstances with the overriding concern being the best interests of the child(ren). The rights of the child(ren) in question will be accorded the greatest weight in the Court’s determination as to whether the residential parent may be allowed to move. When defining what is in the best interests of the child(ren) in question the Court will look at numerous factors. First, the Court will look at the relationship between the child(ren) and the noncustodial parent with an eye towards continuing to foster the relationship. Perhaps there is an easy solution. For example, if a move will inhibit the weekly mid-week visit but the residential parent is willing to allow extended weekend visits, this might be a situation where the all parties might benefit.

Obviously, economic concerns are a factor and when the move is being made in good faith and for a better paying job, the Courts will take a hard look at allowing the move. Another factor the Court will consider is the suitability of the noncustodial parent to become the custodial parent. A solution may be a simple as changing the residential custody arrangement to the parent who is not moving. Before changing the residential custody arrangements, the Courts will also take into consideration the effect that the relocation and/ or transfer of custody will have on the child and the child’s wants and needs. Ultimately the Court will have to determine, based on all the facts presented, by a preponderance of the evidence, whether the relocation is in the best interests of the child.

LEARNING POINT: Even though residential custody may have been settled in your divorce, circumstances may arise where relocation of the child(ren) of your marriage once again becomes an issue. Whether you are for or against the move, the standard is the best interests of the child(ren) and you must be in a position to present your wishes to the Court. Contact us immediately if relocation of the child(ren) is now an issue for you. Effective representation is the only way to ensure that your wants and needs are effectively communicated to the Court.

relocation of children after divorce

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