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Can a Custodial Parent Move Away After a Divorce in New York?


A divorce can be a very difficult and emotional time.  After the whole process is over, an ex-spouse may decide that what they need is a change of scenery; or maybe they had originally moved to New York to be with their partner, and now that the marriage is over, they want to “go home.”

In cases where there are children and the person who wants to move is the custodial parent, moving isn’t quite as easy as making the decision to pack up and go.  New York State law takes the relationships of children with their parents very seriously, and the court may not allow the custodial parent to relocate away from the non-custodial parent. In fact, moving is often viewed by the courts as being against the best interests of the children.

It is important to remember that just because a parent is not the custodial parent, it doesn’t mean that the parent does not have any custodial rights to the children. Custody is separated into “legal” and “physical” custody.  It is unrealistic, in most cases, to expect kids to spend exactly 50% of their time with each parent. Even if parents share joint physical and legal custody, the children are going to primarily live with one parent most of the time. However, this does not give either parent grounds to move out of state.  In some cases, the parent needs to request permission from the other parent and/or court to move if the destination is even a few miles outside the predetermined radius.

When petitioning the court to be allowed to move out of state, or even just a significant distance within the state, the courts are going to review the case on its own merits, as every relocation case is unique.  One criterion for determining if a relocation should be allowed is how it benefits the parent in question. For example, the court will consider the move if the custodial parent is moving for an economic opportunity or if the parent is getting remarried. However, the variable that garners the most weight in a relocation case is whether the move is best for the child.

What Factors Does the Court Consider?

The court is going to look at the case and evaluate both parent-child relationships to determine if physical separation by distance could impact the children and the non-custodial parent.

There are several factors the court needs to consider, for example:

  • Why does the parent wish to move?
  • Why is the other parent against the relocation?
  • What relationship does the child have with each parent?
  • Will the move impact how much time – and the quality of time – the child spends with the non-custodial parent?
  • Will the move encourage a contentious relationship to develop between the former spouses?
  • Can the child maintain a meaningful relationship with the non-custodial parent if the relocation is approved?

These variables assume that there is a healthy relationship between the children and both parents.  This is not always the case.  The court needs to consider if the children will be put in harm’s way if the relocation is not allowed. In some scenarios, moving away can benefit the children by removing them from a toxic environment.

What Options Do I Have if the Court Denies the Relocation?

Moving away with the children is not always allowed after a divorce. In this situation, the parent may need to modify the custody agreement to move without the children. In this case, there will also be a new parenting time arrangement made knowing that one parent has voluntarily decided to move.  The courts will not allow a plan that puts too much stress on the children or the custodial parent.  In these cases, the parent that decides to move away and leave the kids behind has to deal with the repercussions of their decision.

If a parent moves away, with or without the children, there is also another complication that needs to be addressed. The new location may be in a different jurisdiction with alternative laws governing divorce and child custody. Fortunately, all 50 states and the District of Columbia have adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).  This law sets the standards for when a court can make a custody decision regarding a child living in different state. It also sets a precedent for when the court is obligated to accept the judgment of another state regarding a child living in New York.

These guidelines come down to these four criteria: 

  • The state is the child’s “home” state. "Home State" means the child has lived in that state for the last six months or used to until a parent moved them out of the state. 
  • The child has significant connections with people in the state, such as teachers, doctors, and grandparents.  There is proof that the child’s care, protection, training, and personal relationships are based there.
  • The child is in the state, and either has been abandoned or is in danger of being abused or neglected if sent back to the other state.
  • No other state can meet one of the three tests listed above, or a state can achieve at least 1 of the criteria but has declined to make a custody decision.

The UCCJEA also specifies that only one state can make custody decisions.  The UCCJEA avoids a situation where a parent attempts to get the case heard in another jurisdiction if they do not receive the ruling they wanted in the original jurisdiction. As such, another state cannot modify the initial custody order.

Are You Planning a Relocation?

Contact the child custody lawyer at the Law Office of Anthony J. LoPresti if you’re interested in moving or need to challenge your ex-spouses planned relocation. Our firm focuses on all aspects of divorce and family law, including child custody issues. Attorney LoPresti can listen to your case and provide you with options on how to proceed.

Contact the Law Office of Anthony J. LoPresti at (516) 252-0223 to arrange a free consultation.

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