When parents separate or divorce, the parents or a judge will need to work out a custody schedule. A custody order will spell out physical and legal custody, visitation logistics, and child support. Physical custody refers to where the child resides. Legal custody involves a parent's right to make medical, educational, or religious decisions on a child's behalf. Parents may share legal and physical custody, may share only legal custody, or one parent may have sole physical and legal custody.
A child's best interests are paramount to any custody decision. When considering a child's best interests for an initial custody determination, a judge will look at several factors, including:
New York law requires a child's overall best interests to be the deciding factor in any relocation proceeding. Although any disruptions to visitation are an important consideration in relocation cases, visitation is just one of several factors that a court should evaluate in a relocation proceeding.
Before acting on plans to move, a parent must provide the non-moving parent written notice of the plans to move. The non-moving parent can file an objection to the relocation, and a judge will schedule a hearing to determine whether a move serves a child's best interests.
Each parent will likely testify at the relocation hearing. A guardian ad litem or any experts appointed in your case may also testify at the hearing. You should bring any witnesses or other evidence like report cards, school information, or information about the new community that is relevant to your case.
A court will only look at a parent's good faith reasons for the move, the impact on visitation, and how the move will impact a child's overall best interests. In determining a child's best interests, a judge will take at least the following into consideration:
For example, in one New York case, the child's mother was permitted to move 130 miles away with the couple's children. The court deemed the move appropriate and in the children's best interests because the mother had remarried, was pregnant with another child, and her current husband ran an architecture firm in the new location. Additionally, the court determined that the father's visitation would be reduced but wouldn't be severely impacted by a move.
In another case New York case, the court denied a mother's request to move across the state with her kids. The child's father was appointed the primary custodial parent after the mother moved a few hundred miles away with her lover. The mother later returned and sought permission from the court to move the children with her several hours away for her employment, but the court denied her request because the children were established with their father, the mother made no effort to find employment locally, and she admitted that the father was a good influence on the children. Ultimately, the court found that the relocation did not serve the children's best interests.