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What do I have to do to prove my geographical relocation case?
December 4, 2023
I have not discussed geographical location of children because it is a complex area of law but I will deal with the main points in the context of my experience as a practitioner and the current state of the law as I understand it. Geographical location in the context of custody cases comes up often because this is a very mobile society and people have to move because of changes in their lifestyles, remarriage, employment, or many other reasons. Of course, as a result of relocation of the children modifications of prior custody agreements, Family Court Orders and Divorce judgments or other judicial decrees come into play. There is simply no way you can move with your children and not affect the custodial or visitation rights of the other parent.
Any unilateral decisions to pick up and move with your children will not be well tolerated by the Court. Thus, in my opinion you need a seasoned lawyer or attorney practitioner to guide you through making this decision because it can also impact negatively on your rights of access if you proceed in the wrong way.
First of all, the Court’s paramount concern is the best interests of the children and how a move will impact the parental access of the other parent. The Courts demand that there be a meaningful relationship with the noncustodial parent. A recent case discussed this in the body of its decision. You can read the case law in Bliss v Ach, 56 NY2d 995 ; Scott M. v Ilona M., 38 Misc 3d 1215[A] [Sup Ct, Kings County 2013]. Because the courts do favor and encourage awards of joint custody, where the parents are relatively amicable, absent other circumstances, relocation can be frowned upon and hence a higher burden of proof is imposed upon the moving parent to show the court why relocation is necessary. The Courts favor and encourage awards of joint custody where the parents are relatively amicable. If a proposed relocation would disturb the already established meaningful contact of the other parent a motion to relocate can be denied. Matter of Feery v Feury, 168 AD3d at 729; Matter of Lopez v Chasquetti, 148 AD3d at 1152.
Some of the important factors a court will consider when they determine your right to relocate with the children will be discussed in the below paragraphs. In my humble opinion I know a bit about this issue because I did a winning appeal for the father in the Third Department Appellate Division in the State of New York which successfully worked to deny the mother’s right to relocate and also because I enjoy this area of law with its intricacies and its challenges which go beyond an ordinary “best interests” analysis and requires a stronger burden of proof.
The leading case on the topic of relocation, and still good case law is the case of Tropea v. Tropea, 87 N.Y.2d 727, 740-41, 642 N.Y.S.2d 575, 665 N.E.2d 145 . There, the Court clearly held that the best interests of the child is the most important concern in any geographical case and that "exceptional circumstances" such as a "concrete economic necessity” are no longer controlling in a determination as to whether or not the move should be permitted. The companion Court of Appeals case was Matter of Browner v Kenward, and this case related to the same issues discussed in Tropea, supra so you should read that part of the decision as well to get a better understanding of how courts will likely rule on your geographical relocation petition. In the case of Tropea ,supra, the Court affirmed the lower court decision allowing the mother to move because the mother had shown that the relocation would not impede meaningful access between the father and the children, concluding that after a best interests analysis the move would serve the best interests of the children.
In the case of Browner v Kenward, the court also affirmed the lower court decision to allow the move, even though it also found that the lower court method of analysis was not in concert with the law requiring a balancing of factors.
In Browner, the Court of Appeals discussed how the lower Court Appellate Division relied solely upon the factor that the proposed move did not deprive a meaningful relationship between the child and the Father, and so the Court was not required to weigh the various factors and reasons introduced by the litigants at trial. While alluding to, without expressly stating that, the reasoning behind the lower court decision was error because of the failure to employ the correct methodology, the Court of Appeals affirmed the lower court decision, noting that the Family Court trier of fact had determined the move was in the best interests of the children.
Nevertheless, the strong language of both of these cases tends to give greater guidance to the practitioner and the lower courts. That the Courts should not really rely solely upon the methodology set forth in their opinions before deciding whether or not to allow the move but rather should depend upon the totality of the circumstances in arriving at whether the move is in the best interests of the children.
In summary, the Court, in the opinions elucidated in Tropea, supra and Browner, supra rejected the three-step analysis previously used in earlier cases. That earlier analysis required a three step test as follows. First an initial evaluation as to whether the proposed move would deprive the noncustodial parent of "regular and meaningful access to the child" (e.g., Lavane v Lavane, 201 AD2d 623; Matter of Lake v Lake, 192 AD2d 751; Matter of Radford v Propper, 190 AD2d 93; Matter of Schaefer v Brennan, 170 AD2d 879; Matter of Cassidy v Kapur, 164 AD2d 513; Matter of Schouten v Schouten, 155 AD2d 461; Blundell v Blundell, 150 AD2d 321; Murphy v Murphy, 145 AD2d 857; Zaleski v Zaleski, 128 AD2d 865; Klein v Klein, 93 AD2d 807). Second, if a disruption is not shown by the nonvoting party then the courts would not require an assessment of each parties meritorious claims as to the move. (see, e.g., Matter of Bennett v Bennett, 208 AD2d 1042; Partridge v Meyerson, 162 AD2d 507; Matter of Lake v Lake, supra). Third, if a disruption can be presumed by the Court then the earlier cases required the moving parent to show "exceptional circumstances" in order to be able to move. Matter of Lavelle v Freeman, 181 AD2d 976; Rybicki v Rybicki, 176 AD2d 867; Hathaway v Hathaway, 175 AD2d 336). Once all that was determined, then the earlier Courts mechanically tried to apply this test instead of using the currently accepted best interests analysis.
“While this premise has much merit as a tenet of human dynamics, the legal formula that it has spawned is problematic and, in many respects, unsatisfactory” (see, Miller, Whatever Happened to the "Best Interests" Analysis in New York Relocation Cases?, 15 Pace L Rev 339). Tropea, supra.
In Tropea and Browner the Court , rather than affirm the three-step meaningful access exceptional-circumstance analysis that was utilized in past cases, the Court held that every single relocation request must be considered individually on the merits with consideration of all facts that are relevant to that particular case. In other words, all factors having been weighed, the moving party must show that the move would be in furtherance of the best interest of the children. So, the current state of the law with regard to methodology used by the Court has changed somewhat as we now see that while the parent’s rights are still considered relevant in determining whether or not the move is viable, the litigants must now show that the best interests, rights and needs of the children are best met by the relocation. This test is in stark contrast to the three prong test found in earlier approaches, Still, the Court recognizes that the disruption of the relationship between the noncustodial parents and the children is still an important factor to consider. “…. Of course, the impact of the move on the relationship between the child and the noncustodial parent will remain a central concern….” Tropea, supra. It does not discard reasons used by earlier courts, it just makes the analysis, in my opinion, easier and less mechanical.
Accordingly, it appears like the Court has abandoned the notion of having to make a showing that the three tier analysis has been met, which then resulted in a more liberal approach in allowing relocation, so long as there was no disruption in the noncustodial parent’s relationship. Now it appears as though the Courts have moved more toward a best interests analysis of many factors, which in my opinion makes it more difficult for a party to convince the Court that the move should be sanctioned. This is because this test adds additional factors to the already complex best interests analysis in a regular custody case before a move will be sanctioned and imposes upon the moving party a greater number of facts to be proven than in earlier cases.
Here are just some of the factors a court must consider in a geographical relocation case. The Courts are free to consider and weigh the reasons of the parents, the nature of the children’s relationship with each parent, the potential or probable impact on the child, and whether or not the child’s life will be bettered by the move financially, psychologically, and educational. It will also make inquiry into whether the moving party has gotten a new job in another state, or has remarried. All of these considerations means that a party seeking relocation must show, as much as possible, why the move is warranted in furtherance of the best interests of the child.
As always, in the end it is for the court to decide what is best for the children and no stone should remain unturned in presenting or defending against such an application. As such, have your reasoning in order and the documentation to back it up such as proof of employment proof of remarriage and proof of better educational opportunities for the children.
Also know that usually, a best interests analysis in a relocation case will involve an attorney for the child and sometimes even psychological evaluations, but not always. Some courts have made relocation determinations on motion practice where it was indisputable shown on paper that the best interests of the children are served by permitting the relocation event.
I hope this helps you better understand what it takes to prove to the Court why your geographical relocation petition should be granted. Please note that none of this article is intended as legal advice and is provided for informational purposes only. Seek a New York custody or divorce attorney of your own choosing who can help you navigate through this complex area of law.
By: Your Manhattan Divorce Lawyer
Lisa Beth Older, Esq.