Child Relocation 2026 Comparisons

Legal custody, as governed primarily by the New York Domestic Relations Law (DRL) §§ 70 and 240 and the Family Court Act § 651, carries with it the right and authority to make major decisions in a child’s life, including decisions about education, healthcare, and religious upbringing.

Under N.Y. Dom. Rel. Law § 70, either parent of a minor child residing in New York may apply to the Supreme Court for a determination of custody, with the court awarding the natural guardianship, charge and custody of such child based on the best interests of the child. Section 240 of the Domestic Relations Law similarly empowers courts to enter orders for custody in divorce proceedings. The Family Court Act § 651 grants the Family Court concurrent jurisdiction to determine custody and visitation of minors.

See 1.2 Requirements for Birth Mothers.

In New York, a non-genetic parent who has not adopted a child may not automatically have the right to seek legal custody. Before a court may even consider the merits of a custody petition, a non-genetic parent must first establish standing — the legal right to bring the petition at all. New York law recognises two primary pathways for a non-genetic parent to establish standing: (i) the pre-conception agreement test established by the Court of Appeals in Brooke S.B. v Elizabeth A.C.C., 28 N.Y.3d 1 (2016), which applies to former partners who agreed to conceive and raise a child together; and (ii) the extraordinary circumstances doctrine from Matter of Bennett v Jeffreys, 40 N.Y.2d 543 (1976), which applies to all other non-parents, including stepparents, relatives, and caregivers. Once standing is established, the court proceeds to determine custody based on the best interests of the child. Alternatively, a non-genetic parent may avoid the standing hurdle entirely by completing an adoption under N.Y. Dom. Rel. Law § 110, which confers full legal parentage.

Parents who are married at the time of conception or birth of a child have equal legal standing to petition for custody, but they do not automatically share joint legal custody. When parents divorce, New York courts have considerable flexibility in allocating decision-making authority between parents. Under joint legal custody arrangements, both parents share the right to make major decisions for the child. Under sole legal custody, one parent holds that authority exclusively. Courts may also split decision-making authority by subject matter: for example, awarding one parent final authority over educational decisions and the other final authority over medical decisions.

In New York, same-sex parents have the same legal rights and access to custody proceedings as opposite-sex parents. The initial process for obtaining custody depends on the legal status of the relationship between the non-biological or non-adoptive parent and the child. Married same-sex spouses benefit from a marital presumption of parentage and may proceed directly to custody proceedings under the same framework as any divorcing couple. Unmarried same-sex partners who are not adoptive parents must first establish standing as a “parent” by proving, through clear and convincing evidence, that the parties agreed to conceive and raise the child together – a standard established by the New York Court of Appeals in Brooke S.B. v Elizabeth A.C.C., 28 N.Y.3d 1 (2016). Once standing is established, all custody determinations are governed by the best interests of the child standard, and a parent’s sexual orientation alone is not a permissible basis for denying custody.

To obtain an order of adoption – which confers the complete legal relationship of parent and child – prospective adoptive parents must satisfy a series of requirements that fall into four broad categories: (i) eligibility to adopt; (ii) consent of required parties; (iii) completion of a home study or pre-placement investigation; and (iv) finalisation through a court proceeding. The specific requirements differ depending on whether the adoption proceeds through an authorised agency or through a private placement. Upon entry of the order of adoption, the adoptive parents and child sustain toward each other the full legal relation of parent and child, with all attendant rights and duties.

Under New York law, a parent who wishes to permanently relocate a child’s primary residence must obtain either (i) the written consent of the other parent; or (ii) authorisation from a court of competent jurisdiction. This requirement applies regardless of whether the parents share joint custody or one parent holds sole custody.

If the non-moving parent withholds consent, the relocating parent must petition the court for permission, and the court will evaluate the proposed move under the best interests of the child standard established by the New York Court of Appeals in Tropea v Tropea, 87 N.Y.2d 727 (1996). This case required courts to consider the circumstances of each individual family rather than apply a rigid presumption for or against relocation. The analysis considers a non-exhaustive list of factors, including a parent’s reasons for seeking or opposing a move, the child’s relationships with both parents, the effect of the move on future contact, the benefits the child may receive, and the feasibility of preserving a meaningful parent-child relationship.

New York law does not distinguish between moves within New York, within the United States, or internationally. The factual application varies, but the legal standard remains the same.

If a parent removes a child internationally without the other parent’s consent and without court authorisation, the removal may constitute a wrongful taking under the Hague Convention on the Civil Aspects of International Child Abduction. The Hague Convention is implemented in the United States by the International Child Abduction Remedies Act (ICARA), codified at 22 U.S.C. § 9001 et seq. If a return order is issued under the Convention, New York courts enforce such orders as if they were child custody determinations, pursuant to N.Y. Dom. Rel. Law § 77-a.

Where the child is taken to a Hague partner country, the parent left behind has access to a structured, internationally recognised legal mechanism with defined timelines, clear burdens of proof, and a presumption in favour of prompt return. The process begins with a Central Authority application and can result in a court order for return enforceable in the destination country.

The process is commenced by application to the Central Authority of the country where the children are believed to be. In the United States, the designated Central Authority is the US Department of State’s Office of Children’s Issues. Upon receipt of an application, the Central Authority must ascertain the location of the children and work toward their voluntary return. Following the Central Authority process, a petition may be filed in New York Supreme Court or Family Court.

The petitioner bears the burden of establishing, by a preponderance of the evidence, that: (i) the child was habitually resident in a Contracting State immediately before the removal or retention; and (ii) the petitioner had lawful rights of custody at the time of the removal or retention. A Hague Convention proceeding is jurisdictional in nature and is solely limited to the question of whether the child should be returned to the country of habitual residence for determination of the custodial dispute; the ultimate merits of the custody dispute are not before the court. A decision under the Convention is not a determination on the merits of any custody issue, but leaves custodial decisions to the courts of the country of habitual residence.

New York courts apply a two-part test: first, the court inquires into the shared intent of the parents at the latest time that their intent was shared; second, the court inquires whether the evidence unequivocally points to the conclusion that the child has acclimatised to the new location and thus has acquired a new habitual residence, notwithstanding any conflict with the parents’ latest shared intent. The determination is fact-intensive and depends on the unique circumstances of each case.

Where the child is taken to a non-Hague country, the remaining parent is left with a New York custody order that may have compromised enforceability abroad, a federal criminal prosecution which can only be pursued if the abducting parent returns to the United States, and diplomatic assistance that is advisory rather than coercive. In these cases, prevention – through passport controls, travel restrictions in custody orders, and enrolment in the CPIAP – is often more effective than cure.

However, under DRL § 77-a, a New York court may enforce an order for the return of a child made under the Hague Convention as if it were a child custody determination. This means all enforcement tools available for domestic custody orders (including contempt proceedings) are available to enforce a Hague return order. Under DRL § 77-n, a prosecutor or other appropriate public official may take any lawful action, including resort to civil proceedings, to locate a child, obtain the return of a child, or enforce a child custody determination where there is: (i) an existing child custody determination; (ii) a request from a court in a pending child custody proceeding; (iii) a reasonable belief that a criminal statute has been violated; or (iv) a reasonable belief that the child has been wrongfully removed or retained in violation of the Hague Convention.

Under the Hague Convention, if a petition is filed within one year of the wrongful removal, the court shall order return without inquiry into whether the child is settled in the new environment. After one year, the respondent may raise the settled-in defence, making return harder to obtain. Delay can also affect the habitual residence analysis and the child’s own views.

See 3.2 Steps Taken to Return Abducted Children.

This is not applicable as the United States is a contracting party to the Hague Convention.