When one parent makes a request for relocation with a child, that parent has the burden to present enough evidence to prove that the requested relocation is in the best interests of the child. In making this determination, the court will consider a variety of factors, including the child's relationship with each parent, the impact the move will have on contact with the non-custodial parent, the enhancement to the lives of the custodial parent and child due to the move, and each parent's motive for seeking or opposing the move.
The recent New York Supreme Court, Appellate Division case of Stetson v. Feringa provides a demonstration of how a court might apply these and other factors to a relocation request.
A mother's new marriage . . . and relocation request
The parents of the child had been previously awarded joint legal custody of their son, with primary physical placement with the mother and reasonable visitation for the father. The father had undergone brain surgery prior to the child's birth and suffered from various disabilities. Thus, the mother had facilitated visits and provided transportation.
Approximately six months later, the mother met her soon-to-be husband online. The man lived in Oklahoma, but moved to New York and the two were married. This marked a turning point in the child's relationship with his father, as the mother declined to provide transportation for visits, and the father, who otherwise lacked transportation, did not visit with the child for approximately six months.
The mother commenced an action, seeking modification of the prior custody order and permission to relocate with the child to Oklahoma, where the new man's family resided. The family court dismissed the mother's application, and the mother appealed this ruling.
Would the move enhance the child's situation?
The New York Supreme Court, Appellate Division held that it was apparent from the evidence that the impetus for the proposed relocation was the mother's recent marriage. While the mother's desire might be valid, the balance of factors the court considered did not weigh in her favor.
Regarding the possibility of economic enhancement from the move, the mother alleged she could earn 50 cents more per hour as an assistant manager than she earned in New York. However, as the mother was in nursing school, it would take her longer to complete her degree in Oklahoma than in New York, since she would need to repeat certain courses. In terms of educational opportunities for the child, the mother had failed to offer any proof that the Oklahoma school system was a significant improvement over the schools of New York.
The relocation would also impact the father's ability to spend time with the child. Although the mother was offering the father extended visitation, as well as access to the child via online video conferencing, and even expressed a willingness to share transportation costs, the distance and the father's disabilities and limited resources would limit contact.
Thus, the mother did not meet her burden of showing the relocation would enhance the child's economic, emotional or educational well-being.
Making the law work for you and your child
Whether you are seeking to relocate with a child or opposing such relocation, you need a dedicated attorney who knows how to make the law work for you and your child. Seek an attorney who will help you pursue legal solutions that protect your rights and the best interests of your children.