Move-Away Cases in New York
- What is a move-away case?
- How does child custody work in New York?
- Do I need approval to move out of state with my child?
- What happens if the non-relocating parent objects?
- What factors does a judge consider for a move-away case?
- How do I win a relocation case in New York?
- References
Do you have custody of a child in New York and want to move?
To move away with the child, unless moving a short distance, you would generally need to get written consent from the non-custodial parent or special permission from the court.
And, for the court to approve such a move, you would need to show why the move is in the best interest of the child.
What is a move-away case?
A move-away case is a court case in which one party wants to relocate, taking a child they have custody over with them, and the move is a distance beyond what is considered typically reasonable. In New York, this distance can vary slightly, but many child custody orders and agreements address relocation, requiring a custodial parent to remain within a limited geographical region.
Maintaining primary custody over a child while moving beyond the set limit requires special permission. The most straightforward way to get this permission is with the consent of a child’s non-custodial parent. Otherwise, the parent who wants to move would need to convince a court that the relocation is in the best interest of a child, not just the best interest of the parent.
How does child custody work in New York?
New York law breaks custody into two parts: legal custody and physical custody.
Legal custody
A person with legal custody over a child has a right to make important decisions about a child’s upbringing, such as how they will be educated and receive medical care.
Parents are often granted joint legal custody, meaning both parents make major life decisions for their child together. Importantly, legal custody doesn’t have to do with whom the child lives with. A parent who doesn’t live with their child can still have a legally binding say in how a child is raised.
Physical custody
Physical custody is also called residential custody. This sets who is responsible for the physical care and supervision of a child.
Sometimes, joint physical custody is given. In this case, the child lives with each parent for an equal amount of time. However, it could also happen that one parent gets sole physical custody over a child. The other parent is given visitation rights to the child.
Do I need approval to move out of state with my child?
When possible, experts typically recommend getting written confirmation for a non-custodial parent saying they consent to a relocation. Even if they agree, it is usually best to explain the decision to move with them and the reasons you think it is best for your child. Discuss any concerns the non-custodial parent may have as well, and assess how the move may affect their ability to visit their child.
If you cannot get permission from a non-custodial parent to relocate with a child, you will need permission from the court to do so. This is discussed in more detail in the next section. It is often a good idea to seek a court order to ensure the move is approved by the court, even if no parties object, just to make sure there are no issues with the move.
What happens if the non-relocating parent objects?
If a non-relocating parent objects to you relocating with your child, try to resolve the issue together. Find out why they object and if there might be an alternative plan that meets both your needs. If no solution is available, you will need to file a petition with the court for permission to relocate.
When this occurs, getting permission to relocate isn’t guaranteed. In fact, relocation is generally considered a negative by default in court. The moving parent must argue why relocation would benefit the child.
If it comes to this, you and the non-custodial party will argue the issue before a judge in court.
What factors does a judge consider for a move-away case?
When deciding whether a parent should be permitted to move away with a child, a judge’s job is to consider whether the move is in the best interest of a child. They typically consider the following factors:
- The child’s relationship with each parent
- The impact the relocation would have on the child’s ability to contact the non-custodial parent and any siblings
- The degree to which the move might improve a child’s life
- The ability of the non-custodial parent to maintain a good relationship with the child through other visitation arrangements
- Each parent’s reasons for either seeking the move or objecting to it
A child’s best interest
What the state considers to be in the best interest of a child is a complex issue. Several factors are balanced against each other.
Broadly, the goal is that the child is in a safe, secure, and financially stable living situation. While each equipped parent is entitled to parenting time, the court considers the overall living situation and always prioritizes the best interest of the child.
How do I win a relocation case in New York?
It isn’t guaranteed that the custodial parent can always win a relocation case. If a move is likely to represent a net negative to a child, winning such a case would be very difficult (for the mover). If a child has a very close relationship with their non-custodial parent, who has consistently shown the court they are a capable, safe parent, then the case can become even more challenging.
However, there are some best practices you can adopt to maximize your chances of winning your case.
First and foremost, you should always follow proper procedures in this situation. Never try to leave with a child without the consent of the court or the child’s other parent. Failing to do so could lead to serious legal problems and significantly harm your case.
Beyond that, you would need to prove the move is in the best interest of your child (or that staying is in their best interest, depending on which side of the case you’re on).
Be prepared to show the court, from multiple angles, how moving would impact your child’s life. If you’re the one who wants to move, you would also want to show that the move would not severely impact the non-custodial parent’s ability to interact with and visit the child.
Child custody issues can be tough and stressful. At Hello Divorce, we are here for you. Not only do we provide online divorce plans for couples who want to split, but we also provide services such as divorce mediation (for issues like the ones mentioned above), attorney advice, financial planning, and real estate help.
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References
Relocation. (July 2020). Association of the Bar of the City of New York.Custody. (August 2020). New York State Unified Court System.
Best Interests of the Child. (January 2015). Association of the Bar of the City of New York.
Family Court Forms. New York State Unified Court System.
Child Support. NYC Law Department Family Court Division.
