When you look around at your friends and co-workers, how many people grew up in the Capital District, and how many have moved here from somewhere else? How many people meet romantic interests on-line who live in a different part of the country (or world!)? While we live in a mobile and transient society, this does not apply when parents are apart.

Traditionally, in order to move a parent had to prove “exceptional circumstances” such as economic necessity or serious health issues. This standard was revolutionized in 1996 when the Court of Appeals moved the standard to a “best interest” test . The Court held that the factors that must be looked at include, but are not limited to:

• each parent’s reasons for seeking or opposing the move
• the quality of the relationships between the child and the custodial and noncustodial parents
• the impact of the move on the quantity and quality of the child’s future contact with the noncustodial parent
• the degree to which the custodial parent’s and child’s life may be enhanced economically, emotionally and educationally by the move, and
• the feasibility of preserving the relationship between the noncustodial parent and the child through suitable visitation arrangements.

“In the end, it is for the Court to determine, based on all of the proof, whether it has been established by a preponderance of the evidence that a proposed relocation would serve the child’s best interests.”

Relocation cases are the most difficult to settle as there is no compromise. If one parent wants to move to California from Albany, you cannot simply meet half way and agree that they will both move to Chicago! The case law in the years since Tropea is far reaching and extremely subjective as each judge must determine what is in the child’s best interest, while trying to provide the custodial parent a “fresh start,” and preserve the relationship between the child and the non-moving parent.

Since 1996 custody arrangements have changed dramatically and more families have an equal (or close to it) sharing of time. An established arrangement where the non-moving parent spends significant time with the child will make it more difficult for the moving parent to go. For example, a mother’s request to move from Montgomery County to Kentucky to live with her new husband was denied, even though she was expecting his child; in that case, the Court reasoned that since the father had spent 6 out of 14 days with the child, had stable housing and employment, and was an involved and devoted parent, that “trumps” the mother’s desire to start a new life.

In summary, if you want to move it needs to be for a reason other than warm weather, a change of pace, or you want to try something new. On the other hand, if a parent wants to move without a child, you can’t stop him or her.

Finally, if the parent of your child desires to relocate with the child, it is best to first consult with an experienced family law attorney so that you understand what your rights are and what the practical realities would be if you consented to the other parent’s relocation request.

August 2019 Margaret Tabak

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