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So, You Want to Relocate…

  • by Danielle Montalto-Bly

In New York, relocating with your children outside of a 25 mile radius without consent of a co-parent is a challenging request. However, knowing the intricacies of relocation laws and the caveats that exist gives you the best chance of successfully moving without legal issue. 

About five years into my practice, after having handled a number of relocation cases, I represented someone whose custodial co-parent relocated within the State of New York….six hours north. My instinct told me to file an emergency application seeking the immediate return of the child. However, we were retained only a day before the Court appearance, so there was no time for motion practice. I appeared before the Judge and advised the Judge that I would be making an application referred to as a “writ of habeas corpus.” This “writ” advises the Court that the child was taken out of the jurisdiction without permission and when granted, the custodial parent is ordered to immediately return the child. 

It was at this appearance that I came to learn, where parents do not have a formal custody or parenting time order, a writ of habeas corpus cannot be successful. The Court did not have the power to order the return of the child. All they could do was schedule a custody hearing and use the contested move, which was depriving the non-custodial parent of a closer relationship with the child, as one factor in deciding custody. 

Where relocation requires permission, in order to succeed on a request, one must show that the benefits of the move will outweigh the detriment to the relationship between the non-custodial parent and child(ren). This may include a better paying job, better living accommodations, access to schools or extracurriculars they wouldn’t otherwise have, etc. In exchange, the cost of transporting children to the non-custodial parent would likely be on the person who moved and the non-custodial parent may be entitled to more time in the summer, holidays and/or breaks to help compensate for the loss of day-to-day contact. 

All-in-all, the request for relocation is a complicated one, best navigated by an experienced attorney, who can help apply the correct law to the facts of your case. The nuances of these laws cannot simply be learned in a textbook or through reading one article, but require constant immersion in the family court system.