NEW YORK RELOCATION & CHILD CUSTODY

During 1996 the New York Court of Appeals attempted to set forth guidelines for the courts to use in addressing relocation cases. The court made clear that the “best interest” of the child are controlling. It did not however, clearly state how you determine “best interest” in a relocation context.

Relocation cases are “fact sensitive” in that each case must be considered on its own facts and merits.

The court elucidated a number of factors, which should be considered in assessing the impact of relocation:

1. The good faith of the parents in requesting or opposing the move.

2. The child’s respective attachments to the custodial and non-custodial parent.

3. The possibility of devising a visitation schedule that will enable the non-custodial parent to maintain a meaningful parent-child relationship.

4. The quality of the lifestyle that the child would have if the proposed move were permitted or denied.

5. The negative impact, if any, from continued or exacerbated hostility between the custodial and non-custodial parents.

6. The effect that the move may have on any extended-family relationships.

7. The economic necessity of the move.

8. The specific health-related concern for the move.

9. The demands of a second marriage.

10. The custodial parent’s opportunity to improve his or her economic situation.

In determining “best interests” the court must consider the emotional, social, moral, material and educational needs of the child. Decisions by the courts in the past seven years have not provided clear guidance for the parent seeking to relocate.

Relocation case applications will frequently require the appointment of a guardian for the child as well as, home studies and forensic evaluation by a mental health professional, as well as, an eventual trial.

In the last analysis while the respective rights of the custodial and non-custodial parents are unquestionably significant factors, it is the rights and needs of the child that must be accorded the greatest weight since the child is the innocent victim of the parents’ decision to divorce and request to relocate and is the least equipped to handle the stresses of the changing family situation.

Due to the interplay of the complex factors involved, unfortunately there is no predictability in assessing the chances of success of a relocation application.