Permission to relocate
In the case of Tropea v. Tropea, the New York Court of Appeals has stated how a request for permission to relocate or a request to ban the move will be assessed.
The parties were married in 1981 and had two children. They divorced in 1992, pursuant to a judgment that incorporated their previously signed separation agreement. The agreement states that the mother, was to have sole custody of the children and the father was granted visitation on holidays and at least three days of each week. Additionally, the parties were barred from relocating outside of Onondaga County, where both resided, without prior judicial approval.
The mother asked the court for permission to relocate with the children and a change in the visitation schedule. She wanted to relocate because of her plans to remarry. Her faince had purchased a home in the other county . She was willing to cooperate with a liberal visitation schedule and she was willing to drive the children to the father’s home. However, both parties agreed that because of the distance visitation during the midweek would be impossible during school weeks.
The father stated that the mother’s need to relocatie was because of her own life-style choise and that he should not be punished. If the mother would relocate, he believed he should be awarded custody.
Disruption of access rights
The presiding judge denied petitioner’s request. He applied a more restrictive view of relocation, finding that when the move unduly disrupts or substantially impairs the noncustodial parent’s access rights to the children, the custodial spouse seeking consent must bear the burden of demonstrating exceptional circumstances, such as a concrete economic necessity. Applying this principle, the judge found the petitioners desire to obtain a fresh start insufficient to justify the move.
Rather than applying the three-step meaningful access exceptional-circumstances analysis, each relocation request must be considered on its own merits with due consideration of all the relevant facts and circumstances and with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child.
The Appeal Court mentions that these factors include, but are not limited to:
each parent’s reasons for seeking or opposing the move,
the quality of the relationship between the child and the custodial and noncustodial parent,
the degree to which the custodial parent’s and child’s life may be enhanced economically, emotionally and educationally by the move, and
the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements.
A geographical relocation restriction agreed to by the parties and included in their separation agreement might be an additional factor relevant to a court’s best interests determination.