Can the Custodial Parent Temporarily Relocate Outside of New York without Permission?

I am in am in the high risk group for contracting COVID-19 with life threatening complications.  I have family living in West Virginia, a state where thus far not been a single case of COVID-19. I am the primary residential parent and would like to bring our children there to ride out the pandemic in a safer place but the children’s non-custodial parent, also high risk for COVID-19 will not agree. I do not want to see our children orphaned.  As the primary residential custodial parent can I use my best judgment in this crisis and take our children to West Virginia?

Without getting your ex’s agreement or going to Court you would be placing your primary residential custody at risk.  Primary residential custody is subject to the parental access time of the non-custodial parent.  In other words, if your temporary move West Virginia would interfere with any of the non-custodial parent’s scheduled access time with the children you must have the non-custodial parent’s agreement or an Order of the Court to temporarily relocate.  With the current Court closures only emergency applications are being heard.  Amid the onslaught of individual concerns like your own it is unlikely that you would see your issue come before a Judge any time soon.  If your issue were to be heard at all there is more than one way to look at it or for a Court to rule.  For openers, the non-custodial parent could legitimately argue that travel of any kind with the children at this time is dangerous. The question would require a hearing and a hearing would not likely be held anytime soon.

So what to do?  Parties who have been operating on litigation mode need to change course and muster whatever negotiating skills they can dredge up.  Your ex may have honed the skill of summarily nixing any request you make.  You each may see any request made by the other as an attempt to usurp your own parenting time. Now is the time to muster whatever negotiating skills you can dredge up and see how you can add a “what’s in it for him” or “what’s in it for her” to your request.  What are you willing to offer?  Consider offering equal time to your child’s non-custodial parent at another when the pandemic wanes or offer to trade upcoming holidays that would otherwise be yours.

Be creative and be honest with yourself about your own motives.  This is not the time for each parent to be looking for how to gain an advantage.  It is time to come together and focus squarely on how to get your children through this crisis as best as possible.

As always, our team of experienced child custody attorneys at The Mandel Law Firm is on standby to answer any questions you may have about your custody arrangements and how they are impacted by COVID-19.