Modification and Relocation

Often changes in the parties' respective circumstances affecting finances, the children, relocation, all of which can call for a modification of custody, access, or support depending on the specific facts, circumstances and the nature of the change.

Frequently when custody of the children is before the Court, the issue of a parent's desire to move with the children also arises. The issue before the Court is call relocation and also comes before the Court after custody has been determined and a parent seeks a modification to an existing custody order to permit such a move which then would affect the schedule of parental access and parenting time.

As with custody, when reviewing a custodial parent's request to relocate, the court's primary focus is on the best interests of the child. The burden is on the custodial parent seeking to relocate with the child(ren) to establish, by a preponderance of the evidence, that the proposed move would be in the child's best interests.

To determine the child's best interest, the paramount consideration for the Court is what would promote the child's welfare and happiness. The parent seeking to move demonstrate that the proposed move would enhance the child's life economically, emotionally, and educationally.

The standard for relocation in New York was set out in the seminal case of Matter of Tropea v Tropea, 87 N.Y.2d 727 (1996), where the Court of Appeals set forth the factors that the court must consider to determine whether to permit the relocation. The Tropea Court held that while in all cases the courts should be free to consider and to give appropriate weight to all of the factors that may be relevant to the determination of a relocation, the principal factors, as set forth there are:

1.Each parent's reasons for seeking or opposing the move;
2.The quality of the relationships between the child and the custodial and noncustodial parents and a child's attachments to the respective parents;
3.The impact of the move on the quantity and quality of the child's future contact with the noncustodial parent and on the child's life;
4.The degree to which the custodial parent's and child's life may be enhanced economically by the move;
5.The degree to which the custodial parent's and child's life may be enhanced emotionally by the move;
6.The degree to which the custodial parent's and child's life may be enhanced educationally by the move;
7.The feasibility of preserving and maintaining a meaningful relationship between the noncustodial parent and the child through suitable visitation arrangement;
8.The past parenting history of the parents;
9.Which parent can provide a stable living environment for the child;
10.Which parent would most likely alienate or exclude the child from the other parent; and
11.The degree of the parents' inability to cooperate with each other on matters regarding the child and any negative impact from hostility between the parents.

In cases which involve a substantial geographical distance, New York courts have not limited the application of the Tropea factors but have applied those factors in considering the geographical distance measured by the time it takes for a parent (and child) to travel between the proposed relocated residence and the residence of the non-relocating parent and its impact.

In cases where the Court held that relocation was not in the children's best interests, they have found it inappropriate where a parent had failed to demonstrate that the children's lives would be enhanced economically, emotionally, or educationally by the move, including if it significantly limited the other parent's contact with the children.

The relationship between the child and the noncustodial parent is a central concern in relocation cases. Even when a move still provides the noncustodial parent with what may be considered meaningful access, the Court has held that there is still a need to weigh the effect of the quantitative and qualitative losses that result along with such other relevant factors as the custodial parent's reasons for seeking relocation, including the benefits that the child may enjoy or any harm that may occur if the move is or is not permitted.

Distance is not the only consideration. The issue of whether the move is disruptive or will substantially impair, the noncustodial parent's visitation rights is a primary consideration. The Court does not look solely at numerical distance but takes into account other factors such as travel time, the burdens and expense involved in traveling, the number of visitation hours that would ultimately be lost, the frequency of visitation, the regularity with which the noncustodial parent exercised visitation, and the involvement of the noncustodial parent in the lives of his or her children.

Psychologists have also weighed in some of whom encourage the Court to consider the less visible impact of relocation including the possibility that brief visits are no longer possible; whether the child has a different life, one in which the nonresidential parent is now an outsider, no longer sharing the same experiences or even the same environment; whether spending time together requires serious planning and interferes with the child's routine; whether when children spend 2 weekends a month away from their primary residence, their own social network may be disrupted complications are cited such as the impact of joining a sports teams or going to a friend's party; in younger children the concern is that they may not be equip to develop and maintain as close a relationship with a nonresidential parent if geographically separated.

The New York Courts consider the issue of relocation quite seriously and apply the foregoing factors to determine the best interests of the children given their age, maturity, and the impact on them, as individuals, in the circumstances of each case. As with all matters in custody cases, each case is fact specific with no two cases alike.