There is no hard-and-fast exact rule on how far a custodial parent can move with their child within New York State. However, generally speaking – and assuming the custodial parent does not have the other parent’s permission or court permission – they would usually be allowed to move around 20-30 miles maximum (without good justification for the move, that is). As aforementioned, there is no bright-line measure on how far a custodial parent would be allowed to move – unless the custody agreement or order entered into previously states a specific limit on distance.
Many (though not all) divorce settlement agreements that deal with child custody include a relocation clause. Relocation clauses put a specific geographical limit on how far away the custodial parent can move while retaining residential custody of the child. This limit is usually expressed as a space within a certain radius of their current residence. It serves as the “bright-line demarcation” that tells the custodial parent exactly how far away they are permitted to move.
If there is no bright-line demarcation in a prior order or agreement and a custodial parent wants to move, analysis is required. In particular, it must be ascertained whether the distance of the move would be so great as to impact the non-custodial parent’s visitation rights, as well as their ability to participate in all other aspects of the child’s life to the degree that they had been doing historically.
For example, let’s say a non-custodial parent had been very involved with their child’s extracurricular activities, including school events, plays, sporting events and things of that nature. If the non-custodial parent is very involved in these activities, then the custodial parent moving even 20 miles away (especially if living in an urban area with long commute times) could be considered an undue infringement on the non-custodial parent’s rights. This is because it adds an additional 20 miles of travel each way for the non-custodial parent, which they have to undergo every time they want to participate in their child’s life (as they had been doing historically up until that point).
Sometimes it’s not just the mileage. For instance, in New York City, 20 miles could be a tremendous amount of time to travel, so the court would also take that into consideration as well. I have seen moves as short as 12 miles away be disapproved by the courts. Indeed, I even saw a case where a parent was moving from one neighborhood within Nassau County to another neighborhood within Nassau County and their relocation got disapproved by the Judge because the Judge said, “As a practical matter, it’s not just the mileage that matters, it’s also the time that it’s going to take”. So some Judges are taking that into consideration as well – especially if the non-custodial parent already had joint custody and was very involved in every aspect of the child’s life.
Can I Move Out Of State With My Child?
Moving out of state with a child is more of a classic relocation situation. Generally speaking, you will need either notarized, written consent from the non-custodial parent (at the least), and/or court permission. Again, as aforementioned, the analysis really is how involved that non-custodial parent has been with the child and all aspects of the child’s life, as well as what reasons the custodial parent has to justify the move.
It should be noted that in these cases, the court prioritizes what it believes to be in the best interest of the child. Though the best interests of each parent are represented, they are not the prime concern of the court.
Potential reasons for wanting to relocate to a different state are judged on the metric of how the move might benefit versus how much the move might harm the development of the child. Reasons that seem overly concerned with the interests of the parents (especially when they do not seem to coincide provably or directly with the interests of the child) are more likely to be disapproved by the courts.
For instance, if the custodial parent comes to the court and says they want to move to Connecticut simply because “Connecticut is a nicer state”, or they want a “fresh start”, it is unlikely their reasoning will be considered sufficient justification to allow a move out of state, especially if it stands to impede the rights of the other parent.
But again, everything in these matters is fact-specific, and there are some instances where the facts of the case might support that same justification. Let’s say, for instance, the non-custodial parent in the Connecticut case has been largely uninvolved with the child. In that case, the court is much more likely to approve relocation to another state, even in cases where the justification for moving isn’t all that strong. So, there is really a balancing out of the various factors that the court may take into consideration on whether to approve an out-of-state move.
Can I Ever Move Out Of New York State With My Child Without The Other Parent’s Permission?
Yes, in some cases you may move out of New York State with your child without the non-custodial parent’s permission. However, in order to do so, you must obtain the permission of the court.
The way you get the court’s permission in this sort of case depends on whether you are already divorced. If you are already divorced, you have a divorce judgment in place. This judgement may already have a relocation clause. Regardless, in order to apply to the court for permission to move out of New York State as an already divorced person, one option is to file an Order to Show Cause in the Supreme Court. This Order to Show Cause will seek the Judge’s permission to relocate. If you were never married, you can file a Custody Petition in Family Court, specifically seeking relocation.
Filing these documents will usually trigger a relocation trial, which may take some time. In some extreme emergencies, the courts will expedite the trial. In general, the courts do try to expedite relocation cases more quickly than a “normal custody determination” – but even so, they oftentimes take many months to get a resolution from a judge. It can take even longer if there were no prior custody determinations in the first place. If you are coming to court for the very first time to seek relocation and you don’t even have a custody order in place, then the process may take as long as a year or more.
It should be noted that each court varies in its wait times, and circumstances vary within each individual court. Obviously as we’re speaking right now, in August, 2021, we’re still going through a pandemic and the effects of COVID-19 on local, state, and federal courts. Many courts are taking even longer than usual to make determinations because of tremendous backlogs. In general, I would advise potential applicants to be prepared for a long process/long wait times before receiving approval for relocation.
My Child’s Custodial Parent Wants To Move Away With Our Child. Is There Anything I Can Do To Stop That?
Yes, if your child’s custodial parent wants to move away with your child, there are certain things you can do to try to stop that.
The first thing you should do is to immediately write a formal letter to the custodial parent, making it absolutely crystal clear you object to the move.
You can also head-off the process. If they let you know either orally or in writing, “Hey, I’m moving in a week,” or “I’m moving in two weeks,” you can either go into the Supreme Court or Family Court and file an Order to Show Cause – a type of emergency motion. Your Order to Show Cause will ask the Judge to issue an Interim Order restricting the custodial parent from relocating the residence of the child until the judge can decide on whether to approve that move. Timing is of the essence in these matters, and you should act on this as soon as you possibly can.
I have represented clients on both sides of the fence in relocation cases. I have often seen cases where the custodial parent has said, “I plan on moving,” and the non-custodial parent really didn’t do much of anything about it, other than just vaguely object and say, “Well, I don’t agree to you moving.” In their inaction, they allowed the custodial parent to move, and then they decide they don’t like the result and go into court after the move. At that point, sometimes the Judge will order the custodial parent to move back, and sometimes they won’t. Sometimes they will allow the custodial parent and the child to remain in their new location pending a full trial. I suggest that clients bear these potential outcomes in mind, and retain the fact that in these matters, you want to act immediately if you adamantly object to the move.
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