New York Child Custody and Relocation

Child custody is often a significant issue in a divorce. If parents don't resolve it between themselves, a judge will decide for them. But the story may not end there. An existing custody order might need to be changed because the family's circumstances have changed. A classic example is when one parent wants to move with a child. Does New York permit that? And if it does, can the other parent do anything about it? Read on to see how New York deals with parent relocations.

How Child Custody Works in New York

There are two basic types of child custody: legal custody and physical custody. Legal custody deals with parents' rights to make the important decisions about their children's lives, while physical custody concerns where the kids live most of the time.

The norm these days is for parents to have joint legal custody, meaning they both have a say in making the significant decisions affecting their children. Parents may also share physical custody. But, more often than not, the children live primarily with one parent (the "custodial parent"), while the other parent has visitation (sometimes known as "parenting time").

A judge's primary concern in any decisions about custody and parenting time will be the best interests of the child. (Learn more about New York's child custody laws.)

Relocation and Custody Modifications

Parents don't need a judge's permission to move. However, a move that involves changing the child's residence could affect the other parent's time with the child, especially if it's a long-distance relocation. Unlike some states, New York law doesn't require all custodial parents to give advance notice or seek permission before moving with the child.

That doesn't mean noncustodial parents have no recourse when they learn about their child's impending relocation. But the outcome will depend on the specifics of their situation.

Custody Agreements and Relocations

Initial custody and visitation orders are typically based on the parents' custody agreement. In those agreements, the parents may include provisions addressing how a proposed move will affect their current parenting arrangements, and whether one parent needs the other's permission before moving with the child to another state or a certain distance away. The agreement may also restrict the custodial parent—or both parents when they have shared custody—to a specific geographical region, such as the state or county where they were living when they divorced.

Depending on these provisions, a parent who wants to relocate may need to request permission from the court, usually by filing a petition for a modification of the custody order.

Whether or not the initial custody agreement addresses future relocations, parents also have the option of agreeing later about how one parent's proposed move will affect their parenting arrangements. For instance, when the primary custodial parent is planning to move too far away to allow regular midweek or weekend visitation with the other parent, they might instead agree on longer visitation periods during school holidays. They might also agree that the moving parent will shoulder the burden of long-distance travel for parenting time.

If you and the other parent have been able to agree on a revised parenting arrangement, you'll need to submit it to the court, along with a modification request. Judges will usually approve these agreements as long as they appear to be in the children's best interests.

When a Parent Objects to a Relocation

Even when a primary custodial parent doesn't need to get approval before moving with a child, the other parent may seek a modification to request physical custody or at least a significant change in the parenting schedule because of the proposed move. If it appears that one parent is about to relocate with the child very soon, the other parent may apply to the court for emergency relief to stop the move by filing an "order to show cause."

How New York Judges Decide Whether to Allow a Child's Relocation

Whenever there's a legal dispute over a parent's relocation with a child, the judge's main concern will be what's in the child's best interests and how the relocation would affect the child's relationship with the nonmoving parent. Under the standard set by New York's courts for custody modifications in move-away cases, judges may also consider all of the relevant circumstances, including:

• the custodial parent's reasons for wanting to relocate, as well as the other parent's reasons for opposing the move
• the child's relationship with both parents
• the benefits or harm to the child that may result if the move is or isn't permitted
• how much the move could enhance the custodial parent's and the child's life, economically, emotionally, and educationally
• how the relocation will affect the child's contact with the noncustodial parent, and whether it's possible to come up with a visitation schedule that would help them maintain a meaningful relationship, and
• the potential effect of the move on any extended family relationships.

Ultimately, it's up to the judge to decide what's in the child's best interests. (Matter of Tropea v. Tropea, 87 N.Y.2d 727 (N.Y. Ct. App. 1996).)

The decision-making is somewhat different when the parents share equal or roughly equal physical custody, and one of them wants to move far enough to make that custody arrangement impossible. In this situation, the judge will also need to consider factors that aren't directly related to the proposed relocation, such as which parent is better able to meet the child's needs. (Sara P. v. Richard T., 670 N.Y.S.2d 964 (N.Y. Fam. Ct. 1998)

Getting Help With a Proposed Relocation

You can download the form for a petition for modification of custody or visitation from the New York Courts' Family Court Forms page. The Family Court provides an interactive online DIY program for help with filling out the form.

The New York Courts also provide information on representing yourself when filing a motion to show cause.

It's always best if you and the other parent can resolve your disagreements without heading to court, either on your own or with the help of custody mediation. It can save you money (think legal fees) and a great deal of anxiety, and you'll have more control over the outcome than if you have to leave it up to a judge to decide.

Without an agreement, it can be difficult to navigate the complex legal procedures involved in a contested move-away case. Judges in these cases have to engage in a tricky balancing act between the needs of the children and both parents. You should strongly consider at least speaking with an experienced New York family law attorney who can evaluate your situation and advise you on the best way forward.