WHEN THE CUSTODIAL PARENT WANTS TO RELOCATE, WHAT ARE THE NON-CUSTODIAL PARENT'S OPTIONS?

By Sari M. Friedman, General Counsel FRA

It has been almost two years since the Court of Appeals, in Tropea v. Tropea, changed the standard in deciding relocation cases. At first glance, it appeared as if the Tropea decision would provide an open door for relocation by the custodial parent. But that did not quite come to pass. Today, the primary concern in granting relocation is not the custodial parent's needs. It is the best interests of the child. To understand how this might affect you, let's look at some of the rulings since the Tropea decision.

Recent Decisions

In Yelverton v. Stokes (3d Dept)1, a case decided earlier this year, the mother and father, who were divorced in 1993, had joint custody with the child residing with the mother. The father had visitation every other weekend and two evenings each week, a provision that was to be renegotiated by July 1996, before the child entered kindergarten.

However, in 1996, the mother remarried a man who lives and works in California. She commenced an action requesting permission to relocate the child to California. The father opposed the move, and additionally, he moved for custody of the child.

The court denied relocation and granted the father custody. Why? because the court determined it was in "the best interests of the child."
The only reason for the move was that the mother's new husband lived in California. However, she failed to prove, by a preponderance of the evidence, that the relocation would be in the child's best interests. The court also found the mother had many deficiencies.

With such a move, the Child would be in a place that was unfamiliar to him. The new husband had only a developing relationship with the child and no experience with children. On the other hand, the child had a very close relationship with his father and his father's new wife. The court also considered the child's desires, the stability of remaining in the geographical area of his birth, and closeness to his extended family and friends. The law guardian recommended custody be granted to the father. The Appellate Court affirmed.

In another case earlier this year, Fragola v. Fragola (2d Dept.)2, the father moved for custody of his child after the mother had relocated. The court denied his application. But the Appellate Court reversed the decision saying that, "(it) is axiomatic that custody determinations are to be made upon consideration of all relevant circumstances that promote the best interests of the child. The case was sent back to Family Court for a new hearing.

Last year, in Christoffersen v. Gringas (2d Dept.)3, the mother was allowed to relocate with the child. The mother, who had been sole supporter of the child, had lost her job and was unable to find a job where she was living. She was offered and accepted a position in Pennsylvania. The court also determined the father had infrequent contact with the child and failed to pay child support.

In a most recent case, Matter of Sara P. v. Richard T.4, during the marriage, the father stayed at HOME and was the primary care giver. When the parties were divorced, they were given joint custody and equal time with the child. After the parents separated, the father found employment and arranged for child care. The mother was ordered to
contribute weekly for child care and to assume a portion of child care expenses. In 1996, the mother remarried a man who lives and works in South Carolina where her parents live. She relocated there, returning to New York every two weeks for her visit with the child.

After a brief period, the mother sought to have the child relocate to South Carolina and to obtain residential custody. The court determined that residential custody should remain with the father. They reached this decision after considering the mother's reasons for seeking the move, the quality of the parental relationship, the feasibility of preserving the relationships of the child and the non-relocating parent, and assessing which parent is better able to provide the nurturing and guidance the child needs. The Court found that the mother's move was based on personal preference and not family or financial considerations, nor the needs of the child. They further determined that the father was more in tune with the child's needs. The joint custody arrangement was left in place with extensive visitation rights for the mother.

Factors the Court Considers

As illustrated in the cases cited here, the factors that the court will consider in a relocation case include, but are not limited to.

  • Each parent's reason for seeking or opposing the move;

  • Quality of the relationship between the child and custodial and non-custodial parent;

  • Impact of the move on the quantity and quality of the child's future contact with the non-custodial parent including distance of the location in miles and time, suitable visitation arrangements, contribution of money and/or transportation

  • Degree to which custodial parent's and child's life may be enhanced economically, emotionally and educationally by the move;

  • Wishes of the child;

  • Stability in the child' life including availability of extended family.

Conclusion

It would seem obvious that the best way to protect your rights is to exercise them. That means utilizing all your visitation with your child, keeping your child support current, and making regular payments toward unusual amounts (medical bills, for example) that you cannot afford to pay in full. Be as active in your child's life as you can be. Finally, If the custodial parent seeks to relocate, do not solely oppose the relocation. In addition, seek custody.

Tropea has not turned relocation into a free for all for custodial parents as originally feared. But what it can do is provide a new opportunity to review custody agreements and orders. This is something you should want to discuss with your Long Island divorce attorney. Call the firm today.

FN1 Yelverton v. Stokes, - A.D.2d -, - N.Y.S., 2d - (3d Dept., 1998).
FN2 Fragola v. Fragola , 666 N.Y.S.2d 951 (2d Dept., 1998).
FN3 Christoffersen v. Gringas , 663 N.Y.S. 265 (2d Dept., 1997).
FN4 Matter of Sara P. v, Richard T ., NYLJ 3/13/98, p., 32, col. 6.