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Moving Away with the Children After a Divorce


A divorce can be a very difficult and emotional time. After the whole process is over one of the now-ex spouses may decide that what they need is a change of scenery or they had moved to New York to be married 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 will not easily allow one parent to move away taking the children a significant distance away from the non-custodial parent it is against the best interests of the children.

It is important to remember that just because a parent in 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. Since it is unrealistic in most cases for kids to spend 50% of their time with each parent, even if parents share joint physical and legal custody, there is going to be one parent with whom the children live with most of the time. This does not automatically give the parent the right to move out of state. In some cases, the parent must request permission to move if the destination is even a few miles away outside of a predetermined radius.

When petitioning the court to be allowed to move out of state, or a significant distance away even within the state, the courts are going to review the case on its own merits as every case is going to be different. One of the criteria for whether the move is allowed will be what is best for the parent, however the variable that is going to garner the most weight is what is best for the children.

The court is going to look at the case and the parents to see how the relationships are and will consider how being physically separated by distance would impact the children and the non-custodial parent.

There are several factors the court will consider:

  • Each parents reason for wanting to move, or conversely, the opposition to the move
  • The relationship of the children with each of the parents
  • How the move would impact the amount of time and the quality of the time the children are able to spend with the noncustodial parent
  • Would the move cause an otherwise civil relationship between ex spouses to sour or a contentious relationship to worsen?
  • How feasible is it for the children to maintain a meaningful relationship with the noncustodial parent if the move was allowed?

These variables are assuming there is a healthy relationship between the children and both parents. This is not always the case. These factors are also considered. Are the children being kept in potential harm’s way if the move is not allowed? Will the move greatly benefit the children by removing them from a toxic environment?

There are also factors not directly related to the children that could be considered. The court will consider the move If the custodial parent is moving for an economic opportunity or if the parent is getting remarried.

A move with the children is not always allowed after a divorce. In cases where the court has ruled that the parent may not move with the children, they have the option to change the custody agreement allowing the parent to move without the children. In that 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 leaving the children behind must deal with their own decision.

If a parent moves with or without the children, there is now a complication where each of the parents are now living in a different jurisdiction, possibly with different laws governing divorce or child custody.

To provide continuity between states, 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 may make a custody decision regarding a child currently living in another state as well as when the court is obligated to accept the judgment of another state regarding a child presently 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 the state for the last six months or was living in the state but is not there because a parent took the child or kept him or her 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 may decide custody. 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. Another state cannot modify the initial custody order.

If you have any questions about moving after a divorce, or your ex spouse is looking to move away with the children, contact the Law Office of Anthony LoPresti. Focusing on all aspects of divorce and family law, including child custody issues, Anthony LoPresti will listen to your case and provide you with your options on how to proceed. Call our office today for a free consultation.