Child Relocation 2024 Comparisons

New York does not by statute affirmatively delineate parental rights and powers. Nonetheless, “it is the natural right, as well as the legal duty, of a parent to care for, control and protect his child from potential harm, whatever the source” (Roe v Doe, 272 N.E.2d 567, 570 (NY 1971)). “Parents have a fundamental right to raise their children in the manner they choose, subject to the state’s ability to intervene to protect children in narrow circumstances” (Matter of Athena Y, 161 N.Y.S.3d 335, 337 (App Div 3d Dep’t 2021)). See also Matter of Hofbauer, 393 N.E.2d 1009, 1013 (NY 1979) – “every parent has a fundamental right to rear its child” – and Troxell v Granville, 530 US 57, 65 (2000) – “the interest of parents in the care, custody, and control of their children... is perhaps the oldest of the fundamental liberty interests recogni[s]ed by this court”.

Thus custodial parents may make decisions regarding – among other things – a child’s education, religious upbringing and training, and healthcare. They also have the right to discipline the child and promote the child’s welfare. In certain instances, parents are vicariously liable for destruction of property caused by children aged between ten and 18 years.

When parents fail to exercise their prerogatives, Section 1011 of the New York Family Court Act (FCA) permits the court to protect children from injury or mistreatment and safeguard their physical, mental and emotional well-being ‒ even over the objections of a parent.

Parents are responsible for the financial support of a child until age 21 ‒ see Section 413(1)(a) of the FCA (“the parents of a child under the age of twenty-one years are chargeable with the support of such child”). Section 240(1-b)(c)(2)-(3) of the NY Domestic Relations Law (DRL) and Section 413(1)(c)(2)-(3) of the FCA concern prorating obligation between parents. Additionally, Section 240(1-b)(c)(5) of the DRL and Section 413(1)(c)(5) of the FCA require parents to provide health insurance benefits.

New York does not impose requirements on a birth mother beyond those delineated in 1.1 Parental Responsibility. Both parents have the right to seek custody.

New York does not impose requirements on a father beyond those delineated in 1.1 Parental Responsibility. Both parents have the right to seek custody.

Where clear and convincing evidence demonstrates an agreement to conceive and raise a child together, the non-biological, non-adoptive partner has standing to seek custody ‒ even when the parties to a familial relationship are not married to each other.

See 1.1 Parental Responsibility. Both parents have the right to seek custody, regardless of whether or not they were married to each other at the point of the conception or birth of the child. Note that a child born of parents who at any time before or after the birth of the child are married to each other is presumed to be the legitimate child of the marriage.

As previously mentioned in the preceding sections, both parents have the right to seek custody. “Parents” is not exclusively defined as biological parents; parties to a familial relationship (even if not married), who agree to conceive and raise a child together, both have standing to seek custody (see 1.4 Requirements for Non-genetic Parents).

“A proper test for standing ensures equality for same-sex parents and provides the opportunity for their children to have the love and support of two committed parents” (Brooke SB v Elizabeth ACC, 61 N.E.3d, 498–99 (NY 2016)). See also Weichman v Weichman, 158 N.Y.S.3d 154, 156–57 (App Div 2d Dep’t 2021), which vacated a portion of an interlocutory judgment that barred a lesbian parent from “tak[ing] the child to a place or expos[ing] the child to an activity that violates rules, practices, traditions and culture of the child’s Orthodox Jewish Chasidic Faith”). KG v CH, 79 N.Y.S.3d 166, 174 (App Div 1st Dep’t 2018) found that Brooke SB v Elizabeth ACC’s requirement that a plan to conceive and raise a child together “be in effect at the time a child is identified does not add any heightened barrier for same-sex families”.

Similarly, adoption is available to individuals and cohabiting couples, both heterosexual and same sex – the procedures are no different. Section 110 of the DRL includes “any two unmarried adult intimate partners” on its list of persons permitted to adopt. The New York Governor’s Approval Memo of 17 September 2010 contains a “delineated list of those who may adopt” that “includes same-sex couples”. “By replacing references to ‘husband and wife’ [in prior statute] with the gender-neutral term ‘married couple’, this measure will help ensure that all married couples, regardless of their sexual orientation, have equal rights to adopt a child together” (Memo in Support, Chapter 509, 2010 NY Laws).

An adoption must be in the child’s best interests. Pursuant to Sections 112 and 115 of the DRL, a person who wants to become an adoptive parent must file a petition specifying ‒ inter alia – the following:

• whether they are of full age;
• whether they are married or unmarried and, if married, whether they are living together as husband and wife;
• the religious faith of the petitioners;
• the religious faith of the adoptive child and that of the child’s parents as accurately as can be ascertained;
• the manner in which the adoptive parents obtained the adoptive child;
• the period of time during which the adoptive child has resided with the adoptive parents;
• the occupation and approximate income of the petitioners; and
• whether the adoptive parent or parents has a history of child abuse and maltreatment.

Both parents are guardians of their children ‒ with equal powers, rights and duties – and there is no prima facie right to sole custody of children in either parent. Under Article 3 of the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (the “1980 Hague Convention”), to which the USA is a party, the removal or retention of a child is unlawful if:

• it is in breach of the rights of custody attributed to a person under the law of the state in which the child was habitually resident immediately before the removal or retention; and
• at the time of the removal or retention those rights were actually exercised or would have been so exercised but for the removal or retention.

Thus, as a practical matter, the other parent’s consent is required to allow relocation.

Within the context of a matrimonial action, the issue of relocation can be resolved by trial pursuant to Section 240(1)(a) of the DRL. Outside a matrimonial action, the issue of relocation can be resolved by habeas corpus petition under Section 70 of the DRL or Section 651 of the FCA.

The answers provided throughout 2.3 Application to a State Authority for Permission to Relocate a Child do not change if the proposed move is not to a new country but, rather, within the USA.

Although kidnapping is a felony, Section 135.30 of the Penal Law provides that it is an affirmative defence if:

• the defendant is a relative of the person abducted; and
• the defendant’s sole purpose was to assume control of the person abducted.

A “relative” is defined in Section 135.00 of the Penal Law as “a parent, ancestor, brother, sister, uncle or aunt”.

The defence “was designed to treat more leniently the tragic taking of a child by a relative, often a parent, because of a custody battle” (People v Brown, 702 N.Y.S.2d 739, 741 (App Div 4th Dep’t 2000)). The defence is not available, and the defendant would therefore be guilty, if the defendant’s conduct “is so obviously and unjustifiably dangerous or harmful to the child as to be inconsistent with the idea of lawful custody” (People v Leonard, 970 N.E.2d 856, 859 (NY 2012)). In People v Leonard, the defence was not available to the defendant father who – when confronted by police at the child’s home – held a knife to the child’s chest and throat and threatened to kill the child if the police came closer.

Under federal law, “whoever removes a child from the United States, or attempts to do so, or retains a child (who has been in the United States) outside the United States with intent to obstruct the lawful exercise of parental rights shall be fined under this title or imprisoned not more than three years, or both” (Section 1204(a) of Title 18 of the US Code). Pursuant to Section 1204(c) of Title 18 of the US Code, it is an affirmative defence if the defendant:

• acted under a valid court order granting the defendant legal custody or visitation rights which were in effect at the time of the offence;
• was fleeing an incidence or pattern of domestic violence; or
• the defendant had physical custody of the child pursuant to a court order granting legal custody or visitation rights, failed to return the child because of circumstances beyond the defendant’s control, and the defendant notified or made reasonable attempts to notify the other parent or lawful custodian of the circumstances within 24 hours after the visitation period expired, and returned the child as soon as possible.

If the country to which the child has been removed is a party to the 1980 Hague Convention, or if the child is removed from another US state to New York State, a proceeding may be brought under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The UCCJEA is codified in New York at Sections 75 to 78-a of the DRL, which includes enforcement under the 1980 Hague Convention. The Hague Convention is codified in the USA at Sections 9001 to 9011 of Title 22 of the US Code. The UCCJEA is also available if the child has been removed to a country that is not a party to the 1980 Hague Convention.

The USA is a signatory to the 1980 Hague Convention.

• The US Department of State administers the Hague Convention Attorney Network to assist low-income parents in treaty-partner countries in finding attorneys to bring 1980 Hague Convention cases in US courts.
• Annual reports on international child abduction prepared by the US Department of State are available on its website.
• Whether return is immediate or defences are accepted depends on the particular case.
• The UCCJEA may be used to seek the return of an abducted child to a non-signatory country. Further legal information for parents can be found on the US Department of State website.
• The timescale for 1980 Hague Convention applications is set forth in the country-by-country breakdowns provided in the above-mentioned annual reports. The expenses will vary from case to case.

This section is not applicable to the USA, which is a signatory to the 1980 Hague Convention.