New York Divorce Law...

New York Law - What If A Spouse Wants To Move Away?

The court has authority to decide whether the custodial parent may move the child out of state, or otherwise out of visiting range of the other parent.

The court will make this decision based on what appears best for the child under all the circumstances of the case. Factors to be considered include:

• The impact of the relocation on the noncustodial parent.
• The reasons for the location, especially economic necessity or health reasons. Remarriage or economic improvement could be valid reasons for a relocation, as could simply a desire for a "fresh start" in a place where family or opportunity is present.
• The fact that the custodial spouse's new partner had an extra-marital relationship with the custodial spouse during the marriage is not a factor.
• The possibility for a transfer of custody. If the custodial parent is fully determined to move, and it would be in the child's best interest to stay in the school, and near friends and extended family, court might order a change of custody to the noncustodial parent, in order to allow the custodial parent to move.
• The feasibility of a parallel move by the noncustodial parent.
• The good faith of the parent requesting the move.
• The child's attachments to each parent.
• The nature of the visitation schedule that would result, and how that would affect the child. For long-distance moves, the court will attempt to determine whether less frequent, but longer, visitations might be good for the child, by establishing during the visit a more normal domestic routine.
• The lifestyle of the child in each location, including emotional, educational, and economic factors.
• The effect of hostility between the parents in each location.
• The effect on grandparent and other extended family relationships.

Cases:

Tropea (1996) 642 NYS2d 575 (The court should weigh all factors, and not be biased either for or against relocation in general. The mother had custody of the two children. The father had visitation at least 3 days a week and on holidays. The mother became engaged to, and pregnant by, an architect who had an established practice in Schenectady, 2 1/2 hours away. The mother and her fiancee had purchased a home in Schenectady. The mother was willing to allow the father to have frequent and extended contact and to drive the children back and forth to Syracuse. The court permitted the relocation.).

Sandman (1996) 643 NYS 2d 755 (court may conduct open-ended balancing of all factors).

Chiappardi (1994) 204 AD 2d 379, 611 NYS2d 897 (court governs permission to relocate).

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