Relocating With Your Child
After a divorce is complete, if there were children of the marriage, custody of the child was resolved. Typically, though not always, one parent is awarded residential custody of the child subject to visitation rights of the other party. After some time passes, one question which may rise is it whether is it possible for the residential parent to move out of the state. The appellate department discussed this issue in Batchelder v. Bonhotel.
In Bonhotel, Father and Mother, never married and had one child. They separated and stipulated that Mother was to be the residential parent, subject to the visitation of rights of the Father. Father was entitled to see his son every other weekend and one overnight every other week. The Father was consistent with his visitation with the Court finding that the Father and son benefited from a close relationship. Two years later, the Mother lost her job and made plans to move out of New York to Alabama. She informs Father the night before her departure. Father petitions the Court for residential custody of the child.
As a first step, to change the custody arrangement there must be a significant change of circumstance. In this case, step one was easily met. The Mother moving out of the state constituted a significant change of circumstances. Therefore, the Court immediately turned its attention to whether the Mother could relocate with the child. In making such a determination, the Mother bears the burden of proof that she should be allowed to move by a preponderance of evidence.
The Court will look at the following factors:
(1) the relationship with the parents;
(2) the effect of the move on the noncustodial parent;
(3) the potential enhancement to the custodial parent and child due to the move; and
(4) parents’ motives for seeking or opposing the move.
In this case, the Mother claimed that she was unemployed and had better prospects in Alabama with her fiancé. With a little digging, it was discovered she recently met her fiancé online and was planning to stay at his residence. It was also discovered that her ability to support herself and her son, in addition to the child support, was completely dependent on the fiancé. Finally, and the fatal blow to the custody issue, the Court found that the Mother failed to foster a relationship between her son and the Father. She had quit her job so that she could move to Alabama and failed to demonstrate that she was providing a stable environment for her son. Evidence to support her lack of support between the son and the Father was the fact that she sprung the move on the Father the day before and refused to give the Father contact information regarding where she was going and how he could contact his son. The Father, on the other hand, had a steady job, and though he had a girlfriend, was in a steady relationship providing a stable environment. The key though was the Father’s willingness and work towards fostering a close relationship between his son and the Mother. He explained that if the Mother were to leave for Alabama, he committed to skype sessions with his son to see his mother no less than two or three times a week. As a result, the Court denied the Mother’s request to take the child out of the State and granted the Father’s request to change residential custody to the Father.
In this case, the Mother was unable to show how leaving the state would enhance the child’s life, and what I believe was the key to this ruling, the Mother failed to show how she planned on dealing with separation between the Father and his son. Here the Mother was actively hostile to the Father and in no way fostered the relationship. The lesson to take away from this ruling is that the Courts do not look favorably on a party who in any way interferes with the relationship between the child and your former spouse. One can surmise that the uphill battle she had to move her son to Alabama was not made easier with her open hostility to the Father.
If you do want to move your child from the state, make sure that you have a well thought out plan which includes fostering the relationship between your child the non-custodial parent. In addition, be ready to explain how moving your child out of state and away from the non-custodial parent is in the best interests, i.e., will advance the child’s education, financial welfare, and education.