Recent New York State Relocation Cases

New York State courts will implement shared custody and access when it is both feasible (ie, the parties are capable of co-parenting with one another) and in a child’s best interest. Especially in the context of shared parenting arrangements, relocation “present[s] some of the knottiest and most disturbing problems that our courts are called upon to resolve” pitting the desire to move against the remaining parent’s “powerful desire to maintain frequent and regular contact with the child. Moreover, the court must weigh the paramount interests of the child, which may or may not be in irreconcilable conflict with those of one or both of the parents” – Tropea v Tropea, 665 N.E.2d 145, 148 (N.Y. 1996). Advances in travel, remote work and communication technology have not in the slightest ameliorated these difficulties.

The burden is on the parent seeking to relocate with the child to demonstrate by a preponderance of the evidence either a “substantial change in circumstances” (if there has already been a custody determination) or that relocation is in the child’s best interests taking into account all of the relevant factors (if this is a de novo custody determination). The basic inquiry is whether the benefits of relocation outweigh the negative impact on the child’s relationship with the non-relocating parent, taking into account ameliorative steps such as altered but substantively equivalent time-sharing arrangements. The court will inquire into the quality of the parent-child relationships, the impact of the move on the quantity and quality of contact with the non-relocating parent, the degree to which the relocating parent’s and child’s lives may be enhanced economically, emotionally and educationally, and the feasibility and suitability of alternative access arrangements. The court will also attempt to ascertain the “real” motive of each parent for proposing/opposing relocation (in some cases, it is a permissible motivation to remarry or make a “fresh start”) considering among other things the credibility, character, temperament and sincerity of the parties. The court will also determine whether or not (and to what degree) the non-relocating parent is actually involved in the child’s life and makes full use of available parenting time. Finally, the court will be very interested in whether the relocating parent will in fact foster the child’s relationship with the non-relocating parent, or take unfair advantage of distance to engage in “negative gate-keeping”.

Appeal courts tend to defer to the trial courts on these issues and not disturb relocation decisions having a “sound and substantial” basis in the record.

Relocation determinations should generally be made only after a full hearing and inquiry into the facts and circumstances of the case, to protect the best interests of the children. See Janvier v Santana-Jackson, 199 N.Y.S.3d 665 (App. Div. 2d Dep’t 2023) remitting a relocation petition for hearing where the trial court had improperly issued an interim order while the trial was ongoing.

Child’s bond with each parent

The non-relocating parent’s continuing meaningful involvement in the child’s life may be achieved through methods such as a parenting schedule providing longer periods during school vacations and/or sharing the labour and financial burden of bringing the child and non-relocating parent together during the school term and/or through technology platforms such as FaceTime – all taking into consideration the age, needs and maturity of the child. 

Representative recent cases include:

• Relocation granted where the non-relocating parent could maintain a meaningful relationship with the child by spending six weeks during the summer and other school breaks with the child – Faea OO. v Isaiah PP., 198 N.Y.S.3d 437 (App. Div. 3d Dep’t 2023).
• Relocation denied where it would negatively impact the child’s relationship with the remaining parent, who had been actively involved in the child’s life since birth and was a 50/50 parent in all respects, where the relocating parent’s proposed revised parenting schedule eliminated the majority of the non-relocating parent’s overnight visits, reducing parental time to three weekends a month, and barred involvement in school-related and afterschool activities – T.D. v L.M.D., 191 N.Y.S.3d 42, 43 (App. Div. 1st Dep’t 2023).
• Relocation permitted where the relocating parent was the child’s primary caretaker, the child suffered when left alone under the other parent’s care and the “left-behind” parent was awarded liberal access time including during summer and other school vacations – Nancy A. v Juan A.B., 180 N.Y.S.3d 908 (App. Div. 1st Dep’t 2023).
• Relocation permitted where the relocating parent was the child’s primary caregiver and the “left-behind” parent could keep in contact by telephone and video and have extended access during school breaks – Thomas v Mobley, 170 N.Y.S.3d 172, 176 (App. Div. 2d Dep’t 2022).

Stability versus potential enhancements to the status quo

Custodial stability, even with a “less than perfect” parent, is generally a plus. Thus, a proposed relocation should have a quality of permanency such that the child will not prematurely be asked to set down roots elsewhere frequently. Courts will inquire about a child’s ties to the current jurisdiction – through school, friends, doctors, care-providers, extra-curricular activities, family members (including other siblings) and other cultural and/or social connections – and how, if at all, such ties can be preserved and/or replicated.

The relocating parent must concretely show how the child will be integrated into the new community (school, activities, childcare and social engagement) and how the child will benefit (economically, emotionally and/or educationally). For example, relocation may:

• enable the relocating parent to obtain otherwise unavailable or enhanced employment or business opportunities;
• enable the child to be closer to extended family providing emotional, caretaking and/or financial support; and
• enhance education and/or medical treatment which may be particularly important where a child has special needs.

Sometimes emotional and financial enhancement go hand-in-hand as, for example, when family and friends are available to provide childcare or where the relocating parent has more flexible work hours permitting more time to be spent with the child.

In what is a bit of a Catch-22 situation, however, until and unless leave to relocate is granted, the parent wishing to relocate may be unable to make these specific enhancements concrete (ie, applying to a specific school; consulting with a specific doctor). Similarly, one court rejected relocation premised in part on the relocating parent’s family’s willingness also to relocate to the same jurisdiction as being based on a wished-for resource, as opposed to a resource already present.

Representative recent cases include:

• Relocation permitted where the children’s lives would be enhanced economically and emotionally – Henry CC. v Antoinette DD., 202 N.Y.S.3d 526 (App. Div. 3d Dep’t 2023).
• Relocation with nine-year-old denied. Child had strong connections and ties to New York including friends, school, activities, doctors and care providers – W.H. v L.H., 187 N.Y.S.3d 584 (N.Y. Sup. Ct. N.Y. Cnty. 2023). 
• Relocation permitted to enhance child’s life economically and emotionally. Relocating parent had a strong support system of extended family in new location, where housing and childcare would be provided for free, allowing the relocating parent to work more hours and earn more income, and the child to enjoy a close relationship with family members – S.R. v. S.W., 180 N.Y.S.3d 800 (N.Y. Fam. Ct. Tomkins Cnty. 2022).

The child’s wishes

A child’s wishes or preferences may be considered by the court and given greater or lesser weight depending on age, maturity and other facts and circumstances. Wishes or preferences can be communicated through counsel for the child, through a forensic evaluator, or even by the court directly interviewing the child in chambers outside of the presence of the parties, with counsel of the child present. Children may sometimes express a desire to live with one parent, or to continue to attend (or to change) school. At the same time, and paradoxically, the relocating parent can be criticised for, or even barred from, informing the child (especially a young one) about even the possibility of relocation such that the child may not have a meaningful opportunity to express a preference for or against changing the status quo. To the extent the child does express a preference, the court is more likely to consider the wishes of a child of “advanced age” which, although not specifically defined, appears to encompass teenagers. Of course, children may change their mind over time, and preferences that may have been expressed in a former custody proceeding, if no longer current, will not be given much weight. However, children expressing their wishes is not the same as children deciding.

Representative recent cases include:

• Relocation denied where the trial court improperly allowed the children’s wishes to chart the course of litigation – Mason v Mason, 193 N.Y.S.3d 803 (App. Div. 4th Dep’t 2023).
• Relocation permitted even though the court-appointed forensic evaluator found that the child’s best interests were not served by the relocation, where the court-appointed forensic evaluator based this conclusion on conversations with the child that occurred over one year before the trial. The child’s wishes had changed at the time of the trial, and the attorney for the child recommended relocation – Alevy v Herz, 186 N.Y.S.3d 29 (App. Div. 1st Dep’t 2023).
• Relocation denied despite potential to enhance child’s life financially, where the child had a strong bond with the remaining parent and was of an advanced age and expressed the desire to remain with this parent and attend the local high school – Daniel G. v Marie H., 151 N.Y.S.3d 475 (App. Div. 3d Dep’t 2021).
• Relocation permitted, taking into consideration the fact that the teenage child expressed a preference for relocation – Louis B. v Jennifer L., 131 N.Y.S.3d 335, 336 (App. Div. 1st Dep’t 2020).

Distance

Geographical distance is not per se determinative. Even a small distance can unreasonably impede parental access where it would burden weekend access, if not render it impossible. Representative recent cases include:

• Relocation permitted where the child was academically and socially thriving in his new school in the new location and a liberal parental access schedule would allow for the continuation of a meaningful relationship between the non-relocating parent and the child – Wright v Burke, 209 N.Y.S.3d 67 (App. Div. 2d Dep’t 2024).
• Relocation permitted despite requiring non-relocating parent to travel an additional 15 minutes by car, where the move would not have a substantial impact on the non-relocating parent’s access and the child’s life would be enhanced economically by the move – Thomas S.S. v Alicia T.T., 170 N.Y.S.3d 389 (App. Div. 3d Dep’t 2022).
• Relocation 12.5 miles away denied where it would negatively impact the quantity and quality of the contact with the other parent whose religious practices prevented car travel on weekends and certain holidays, and thus would bar access according to the parenting time schedule in place and significantly hamper attendance at activities – Schwartz v Schwartz, 132 N.Y.S.3d 34, 37 (App. Div. 2d Dep’t 2020).

Parties’ prior agreements

Where the pre-existing custodial relationship results from the prior agreement of the parties and has successfully been implemented over time, such prior agreement will be given significant deference as a recognition of the child’s best interests. Agreements containing a “radius clause” permitting and/or restricting relocation are particularly relevant.

Incidentally, during the COVID-19 pandemic, some parents made informal or temporary changes to pre-existing formal parenting arrangements and later argued that the pandemic situation warranted more permanent relocations. The courts have consistently enforced parties’ formal custodial arrangements as the pandemic has ebbed. During the COVID-19 pandemic, courts were mindful of not allowing parents to shoehorn temporary pandemic arrangements into more permanent ones.

Representative recent cases include:

• Denying relocation where the parties’ informal agreement to reside in their second homes during the COVID-19 pandemic did not alter the five-mile radius clause of their existing custody agreement – Cleary-Thomas v Thomas, 155 N.Y.S.3d 316 (App. Div. 1st Dep’t 2021).
• In denying relocation, the court heavily weighted a non-relocation “radius clause” in a custody agreement, despite the fact that the parties temporarily navigated exchanges over distances exceeding the radius during the COVID-19 pandemic – W.H. v L.H., 187 N.Y.S.3d 584 (N.Y. Sup. Ct. N.Y. Cnty. 2023).

Domestic violence and related issues

Proven domestic violence and/or abuse/neglect impact relocation. Representative recent cases include:

• Permitting relocation based in part on a history of domestic violence by the objecting parent including instances of verbal and physical abuse in front of the children – Henry CC. v Antoinette DD., 202 N.Y.S.3d 526 (App. Div. 3d Dep’t 2023)
• Permitting a child’s relocation to Texas with its father based on credible evidence that the mother, although initially awarded sole legal and physical custody, neglected the child including with respect to the child’s hygiene and school attendance, and where there were concerns about the mother’s substance misuse – Jesse FF. v Amber GG., 202 N.Y.S.3d 505 (App. Div 3d Dep’t 2023).
• Permitting relocation even though it would disrupt the remaining parent’s regular access given credible evidence that the remaining parent engaged in verbal and substance abuse and subjected the relocating parent to domestic violence – Lavery v O’Sullivan, 169 N.Y.S.3d 632 (App. Div. 2d Dep’t 2022).

Conclusion

Relocation proceedings, as with all custody-related proceedings in New York State, ultimately turn on the particular facts and circumstances and the best interests of the child. While on its face relocation appears to conflict with shared parenting, courts must determine how, if at all, parenting can be (re)structured to preserve the non-relocating parent’s involvement if relocation is otherwise best for the child overall.