If you are a custodial parent and a Judge denies your relocation petition after a hearing or trial, there are steps you can take. After the Judge issues their decision, you will get a final Order to that effect. You have a right to appeal that Order, keeping in mind you generally only have 30 days to file the Notice of your intention to appeal (called a “Notice of Appeal”). Generally, if you miss the deadline, then you’re not going to be able to appeal to the next highest court. There are several exceptions to this rule – e.g., sometimes they make exceptions if there has been no “Notice of Entry” of the final order that got served on you. Nevertheless, you should really act immediately to challenge the Order.
Now, if ultimately the Judge says, “You can’t move” and you either don’t appeal or you do appeal and you lose the appeal, that means that you can’t move. If you do move and you violate a Judge’s order, in all likelihood the Judge is going to strongly consider taking the child away from you and putting the child in the custody of the other parent. It would be a bad move on one’s part to disregard a judge’s order.
That said, I often advise custodial parents that if they’re seeking relocation, they should also strongly consider filing for child support. If they already have a support order in place, filing an upward modification of the support order will fulfil the same purpose. This is a way to “cover your bases”, so to speak, as marked steps you have taken to try to get more financial support before opting to move.
To illustrate this point, let’s say there’s a custodial parent who wants to move from the NYC area to Pennsylvania with their child. Let’s say one of the stated reason the parent is seeking to relocate is financial (i.e., they say they want to move to Pennsylvania because the greater NYC area is becoming too expensive). This issue will come up at trial. Opposing counsel may ask you if you sought increased child support if you were struggling with meeting NYC costs. If you have done so, that is one less roadblock they can put in the way of your move.
Requesting child support or increased child support payments also has another upside when it comes to relocation. I often tell custodial parents that child support can function as a sort of bargaining chip over the non-custodial parent. For instance, you can say to the non-custodial parent, “I’ll cut you a deal on child support if you’re willing to agree on the relocation”. Indeed, it’s a specific statutory factor on child support if the non-custodial parent incurs “extraordinary visitation expenses” in order to exercise their visitation.
As such, child support can be considered both a factor and a negotiation tool. Ultimately, if the non-custodial parent is going to object to the relocation, the custodial parent can use that financial leverage to try to get the non-custodial parent to the bargaining table. At the very least, asking for child support or a child support increase will put more money in your pocket, which may help you deal with the higher costs of staying in a more expensive area (if a financially based move is not approved).
Have You Noticed Any Issues Or Decisions That Parents Struggled With More Due To COVID-19?
I am noticing many decisions that have been affected and made more difficult by COVID-19 and the events of the COVID-19 Crisis. First and foremost, there are many new decisions in terms of movement and physical safety. For instance, many parents struggled with whether it was safe for children to leave their respective homes or to move between those homes. In the beginning of the pandemic, there were a lot of places that were closed down, including common meeting grounds like shopping malls. As such, it became very problematic to have visits anywhere other than the houses of each parent.
One of the biggest stumbling blocks for many parents in 2020 had to do with safety measures for visits, specifically regarding the safety precautions each parent was expected to put into place to ensure safe visits. How could each parent ensure the other parent is actually following protocols? Are they getting regular COVID-19 tests? Do they wear masks and use hand sanitizer? Once the vaccine became available, are they getting vaccinated?
Masks have been a source of (unnecessary) conflict and confusion. Of course, this is not a shocker since they have been a contentious issue in America generally. The CDC itself has been somewhat unclear on its own guidelines. For instance, at one time the CDC said that fully vaccinated people no longer had to wear masks. However, with time they learned this actually wasn’t the case, and changed their recommendation to say that vaccinated people still ought to wear masks, particularly when they know they’ll be within 6 feet of an unvaccinated person. The majority of children are included among the unvaccinated, since as of September 2021, the vaccine is not yet available to any children under 12 years old.
It should also be noted that very early on in the COVID-19 Crisis, the trial courts were issuing decisions which said that non-custodial parents should still get visitation, even during a pandemic. At that point, the only real issue for the courts was the matter of the safeguards being put into place. That is, whether the parents were following recommended safeguards against COVID-19, such as using the anti-bacterial, wearing masks when they need to, getting tested, etc. If the non-custodial parent was following those safeguards, the courts continually ruled they should continue to have access to their visitation rights.
Of course, this gives rise to a whole host of issues. For instance, I commonly see situations where there is a court order to continue visitation with the non-custodial parent despite the pandemic. It may appear the non-custodial parent is following all the precautions themselves (i.e., they will show up to pick up the kids wearing a mask). However, the custodial parent then becomes concerned – because they find out the non-custodial parent takes off the mask as soon as they drive away, or perhaps the non-custodial parent shows up with a girlfriend or family member who isn’t following precautions and wearing a mask.
At that point, I have helped my clients in that situation get further court orders, which specifically say that everyone who interacts with the child must follow all NYS & CDC protocols, or they need to be fully vaccinated.
Sometimes it’s a matter of the attorneys just speaking to each other and then helping their parties to get things in place.
If Divorced Or Separated Parents Cannot Agree About Whether To Vaccinate Their Children Against COVID-19 In New York, Who Decides?
If there is disagreement vaccinating a child in New York, that issue needs to be taken before a Judge. If one parent wants to get the child or children vaccinated and the other adamantly objects, it’s likely the court will recommend vaccination, since the CDC and the World Health Organization highly recommend vaccination for children over the age of 12 (as of September, 2021).
If a parent wants to keep their child or children from being vaccinated, that’s what the courts are there for. The parent will need to set forth their factual reasons for objecting to the vaccine (e.g., specific & corroborated religious or medical objections), and a Judge will consider them.
That said, there was a relatively recent decision just before this current pandemic regarding the measles vaccine. Parents were objecting to the requirement/mandate that children receive certain vaccines and inoculations in order to attend school. The New York Courts ruled that the school board’s decision to mandate the vaccinations were constitutional. Therefore, the parents could not object due to religious reasons, and to the best of my knowledge there are extremely few medical justifications for not getting your child vaccinated.
Considering that ruling, it would seem like the anti-vaccination stance would be a tough sell for a parent standing before a Supreme Court Judge or a Family Court Judge. However, if they were to try, the burden would be on them to prove why they have a right to object to vaccinating their child.