Relocation and Modification of Custodial Arrangements

One of the most common post-divorce scenarios is that the custodial parent wishes to relocate, the other party objects to such proposed move and argues that such move may negatively impact on the other parent’s relationship with the child. Assuming that the parties’ Judgment of Divorce, or separation agreement, does not conclusively address this issue, the party seeking to relocate will typically need to seek the court’s permission to do so.

As laid out in the leading case of Tropea v. Tropea, 87 N.Y.2d 727 (1996), the issue is to be determined is whether the proposed relocation is in the best interest in the child. In doing so, the court is to consider the following criteria:

1. Each parent’s reason for either seeking or opposing the relocation;

2. The current state of the relationship between each parent and the child;

3. The impact that the relocation will have on the quality and of the child’s relationship
with the non-custodial parent;

4. The emotional, economic and educational effects that the move will have on the
child; and

5. The feasibility of maintaining the relationship between the child and non-custodial
parent.

The trial court must weigh all of the factors and determine not what would be best for the parents but, rather, what is in the best interests of the child.

In Noble v. Noble, 52 A.D.3d 490 (2nd Dept. 2008), the mother sought to relocate from relocation from Long Island to upstate NY. The court held that the proposed relocation was in children’s best interests since the proposed move would provide economic, emotional and educational benefits for the mother and parties’ children without precluding meaningful and regular contact between children and father.

In Mallory v. Jackson, 51 A.D.3d 1088 (3rd Dept. 2008), the parties consented to June 2006 order awarding joint legal custody with mother having primary physical residence of the children. In October 2006, mother sought permission to relocate with parties’ children to North Carolina. Mother moved to North Carolina while petition was pending, leaving children with father at maternal grandmother’s home in Schenectady County. Mother was required to demonstrate by preponderance of evidence that proposed relocation would be in children’s best interests. Mother alleged that father had failed to provide her financial support throughout their relationship, and she was moving to be near a relative who offered financial assistance. The Appellate Division held that mother, who had already relocated, failed to present evidence at hearing that her financial situation in North Carolina was significantly better than while living in New York. Mother’s remaining extended family continues to reside in New York. The proposed relocation to North Carolina would deprive child of meaningful contact with father and members of their extended family and mother failed to establish existence of compelling reason to justify relocation of children to North Carolina.

If the court does not find the proposed move to be in the best interests of the children, the parent who has the primary physical residence of the children usually has a choice between staying or losing that primary physical residence to the other parent.

Good Faith Allegation of Abuse Cannot Be Held Against Accuser in Custody Proceeding

Recently, in divorce and custody cases, the so-called “parental alienation” factor has become particularly prominent among the statutory criteria dealing with custody. The court decisions have described “parental alienation” in terms of failure to support the child’s relationship with the non-custodial parent. This particular issue has carried a tremendous force in custody cases, and often was used to override the primary caregiver criterion. The significance of “parental alienation can be explained as follows. If “parental alienation” is proven, it often has resulted in a change in custody despite the long-standing parenting arrangements that have been successful otherwise.
The problem with claim of “parental alienation” is that in some cases judges have treated allegations of abuse and neglect that could not be proven as tantamount to “false” allegations maliciously brought to advance an agenda of alienation. This has placed concerned parents between the proverbial rock and the hard place. If they act in good faith to protect their child, they do so at risk of losing custody. If they don’t act, they are abdicating their parental obligation to protect their child. The Legislature has acted in response to this problem and the Governor has signed into law an amendment to DRL § 240 to provide protection for litigating parents who report abuse or neglect in good faith and based on a reasonable belief that the allegation is legitimate.
Domestic Relations Law § 240, subdivision 1 (a) was amended to provide that a good faith allegation of abuse cannot be held against the accuser in child custody proceedings. The amendment to the statute is intended to ensure that the accuser engaging in a good faith effort to protect or seek treatment for the child due to the child abuse or neglect cannot have these actions used against them when determining custody or visitation. If a parent makes a good faith allegation based on a reasonable belief which is supported by facts that the child is the victim of child abuse, child neglect, or the effects of domestic violence, and if that parent acts lawfully and in good faith in response to that reasonable belief to protect the child or seek treatment for the child, then that parent may not be deprived of custody, visitation or contact with the child, or restricted in custody, visitation or contact, based solely on that belief or the reasonable actions taken based on that belief. If an allegation that a child is abused is supported by a preponderance of the evidence, then the court must consider such evidence of abuse in determining the visitation arrangement that is in the best interest of the child, and the court may not place a child in the custody of a parent who presents a substantial risk of harm to that child. Laws of 2008, Ch 538, effective September 4, 2008.