Relocation with a Child After Divorce

After a divorce has been finalized, changing circumstances may necessitate relocation for a custodial parent. For example, a custodial parent may need to relocate because of work/job, to live with a new spouse, or perhaps to improve their child's educational opportunities. Whatever the reason, if a custodial parent wishes to relocate with a child, they may be met with resistance from the noncustodial parent, who might be concerned about their parenting time being unfairly limited. In this case, a custodial parent may find themselves back in court, where they would need to make a persuasive case as to why relocation is not only necessary but in the child’s best interests. Family court decides on relocation issues, and they don’t grant approval lightly.

While a custodial parent may have specific rights when it comes to making decisions about a child’s daily care, relocation can have far-reaching effects on a child as well as the child’s relationship with, and access to, the noncustodial parent. Consequently, simply having child custody may not alone entitle the parent to relocate with them. If a noncustodial parent raises an objection to the relocation, barring certain exceptions the custodial parent would likely need to return to court and file a petition to relocate.

Because of the potential impact of relocation on a child, New York courts will not grant a custodial parent the right to relocate with a child without careful consideration of the potential effects the relocation is likely to have on the child’s welfare.

To this end, the court will evaluate several factors, including:

• Existence of a relocation clause in agreement
• Custodial parent’s motivation for relocation – Must be a good reason, such as relocation for work or remarriage
• Noncustodial parent’s motivation for objecting to the relocation – Must be a good reason, such as potential for an adverse impact on their relationship with the child
• Quality of the child’s relationship with either parent (parent-child bond)
• Relocation effects on visitation/parenting time with the noncustodial parent
• Economic, emotional, and education benefits of relocation for the child
• Financial and emotional benefits of relocation for the custodial parent
• Ability to suitably modify visitation arrangement to preserve noncustodial parent’s relationship with child
• The child’s preferences (if they’re old enough)

In their consideration of all the factors, first and foremost the court’s concern will be to determine if relocation is in the best interest of the child.

If the custodial parent’s desired relocation is to a more distant location, such as out of state, or to any extent that it would disrupt a visitation schedule (particularly in joint custody situations and if the noncustodial parent is an active part of the child’s life and objects to the relocation), the burden of proof is higher on the custodial parent to persuade the court that the relocation is in the best interests of the child. If the custodial parent does not present a strong enough case to justify relocating with the child, the court is more likely to deny the move to avoid adversely impacting the child or their relationship with the other parent, in which case the custodial parent should be prepared to stay put or to relocate without the child.

However, if the noncustodial parent does not regularly exercise their visitation rights (or already has limited access to the child), and is not an active part of the child’s life, the court may be more likely to grant the move despite any objection, particularly if the custodial parent can show that there’s a good reason for the move (such as a job or remarriage) and that the move would enhance the quality of life for the child.

In some cases, spouses will include a relocation clause in their agreement allowing either parent to move (usually within a certain distance) without consent from the other parent. Such a clause ideally would grant parents some latitude to relocate if changed circumstances necessitated a move, regardless of the status of their relationship with the other parent at that time.

However, even if there’s a relocation clause in a child custody agreement negating a need for consent from the other parent, it may still be possible to effectively challenge a custodial parent’s petition for relocation. While the court would likely take the relocation clause into consideration, it’s unlikely to be a controlling factor and would be just one in a range of factors.

The court always prioritizes the child’s best interests in any decision regarding child custody or child visitation. The court could still grant the relocation despite an objection from the noncustodial parent, but is unlikely to do so without first hearing the case. If the noncustodial parent can effectively persuade the court that the relocation would have an adverse impact on their relationship with the child or on their parenting time, the burden becomes much higher on the custodial parent to prove the relocation is in the best interests of the child.

If you’re a custodial parent wishing to relocate with your child – whether you’re looking to relocate with your child to another state or another city – it’s usually best to secure the noncustodial parent’s consent to the relocation, in writing, even if you have a relocation clause that doesn’t require consent. If the noncustodial parent gives you no consent to relocate, you may be met with an objection from them after the fact, regardless of an existing relocation clause, and end up back in court. You should not attempt to relocate with a child if you do not have the noncustodial parent’s consent, a relocation clause that expressly entitles you to the move, or a court order granting the move, or you may be at risk of committing an unlawful relocation.

Relocating after divorce is often a complex matter, given the potential ramifications for all those involved, and one of the most common grounds for modification of a child custody order. Issues often arise, even in circumstances where the divorce/custody agreement has attempted to anticipate them. Whether your relocation situation appears to be straightforward, or is contentious, Ksenia Rudyuk, principal attorney of Rudyuk Law Firm, P.C., is a knowledgeable, experienced family law attorney who can help you navigate the often complex relocation process.