I Have Primary Custody Of My Child In New York. Do I Have The Right To Relocate With My Child If I Share Custody With Their Other Parent?

No, you do not have the right to relocate with you child if you share custody with the child’s other parent. Merely having primary custody of the child—or even having sole custody of the child—does not entitle you to relocate the residence of the child, at least not to a location far enough away that it would affect the non-custodial parent’s visitation rights.

This is a common misconception among parents who are awarded primary or sole custody of their children. They often believe that having sole or primary residential custody allows them to move away without the court’s permission. I often see parents who hold primary custody attempting to move 20, 40, even 50 miles away and farther, and expecting that the court will not intervene. This is not the case.

Therefore, if you truly want or need to move to a location that would be moderately far away from the child’s other parent, you need (at the least) to obtain written, notarized permission from that non-custodial parent to do so. In addition, if you already have an order from either Divorce Court or Family Court addressing custody and visitation in your case, you should go back to court and get another order allowing the move as well. Even if the other side (i.e., the non-custodial parent) consents to your relocation, you should still go back to court and get an order that solidifies their consent. This way, no one can change their mind or wake up on the wrong side of the bed one morning and decide they don’t consent to the move after all.

If the other parent doesn’t consent to a move and you’re already divorced, then you need to file an application with Family Court (or with Supreme Court). If you’re still married, you need to file an application with Divorce Court – which is Supreme Court in New York.

What Factors Will The Court Consider When Determining Whether A Parent Can Relocate With The Child?

In New York State, we have a leading decision on relocation called Tropea. In a nutshell, Tropea basically says that the court should consider all circumstances surrounding the reasons or justifications for a potential move. Generally speaking, moving a child is disfavored to the extent it will impact or impede the non-custodial parent’s visitation rights. Some examples of specific factors the court takes into consideration when considering a move include:

• Each parent’s reasons for seeking or opposing the move
• The quality of the relationship between the child and both the custodial parent
• The quality of the relationship between the child and the non-custodial parent
• The specific impact of the move on both the quantity and quality of the child’s future contact with the non-custodial parent
• The degree to which the custodial parent and the child’s life may be enhanced economically, emotionally and/or educationally by the move
• The feasibility of preserving the relationship between the child and the non-custodial parent through suitable visitation arrangements if the move is approved.
• The involvement of the non-custodial parent in the child’s life and with the child historically up to the point of relocation. That is, how often the parent actually visits the child, and how involved the parent is in various areas of the child’s everyday life (i.e., schooling, extracurricular activities, sports, playdates, vacations, etc.).
• The child’s preferences (to the degree that the child is old and mature enough to appreciate the potential impact of a relocation on their relationship with the non-custodial parent).

This is not an exhaustive list, but it hits the main factors which are usually considered when a court decides whether to allow a custodial parent to move with a child.

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