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Parent & Child
Job mobility for divorced parent: Your first move may be in court
By Bruce Listhaus & Francine Silverstein 
Jul 31, 2005, 19:24

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Molly*, a 37-year-old computer programmer, considered herself one of the lucky ones. Her employer was moving operations from New York City to Phoenix, but her supervisor told her she could keep her job if she was willing to relocate. That meant a move across country and a major problem that had nothing to do with packing up a household and juggling a full-time job: Her ex-husband Joe, in a nearby suburb had visitation rights to their daughter, Julie. Now he would be thousands of miles away.

Everything had happened so fast, Molly was in a daze. At least her job hadn t been shipped overseas. Should she and Julie simply make the move, then phone Joe and let him know what had happened? After all, it wasn t her idea to move, but if she was going to be financially able to support Julie, she needed to relocate. Maybe Joe would understand.

Molly needs that job, but she also needs a lawyer.

That s because a custodial parent cannot just take a child and relocate so far away that it will interfere with the visitation rights of a non-custodial parent who has legally established rights to the child, at least, not without getting permission from the court or the written consent of the non-custodial parent. A custodial parent who makes such a move risks being forced to return to her original state to litigate whether the move is in the best interests of the child, should the non-custodial parent file an application to prevent relocation within the first six months following the move. This litigation can take months or even years to complete.

With divorce being so prevalent today, and with the greater presence of women in the workforce, Molly's dilemma is an all too familiar one. The downsizing and outsourcing of jobs and the high cost of living in a big city have forced workers to be more mobile, putting increased pressure on all the parties when custodial parents must relocate.

As stated in the 1996 New York Court of Appeals decision, Tropea v. Tropea, the leading case in New York on the issue of relocation, these cases present some of the knottiest and most disturbing problems that our courts are called upon to resolve. The interests of the custodial parent faced with a necessary job move are pitted against those of the non-custodial parent who has a powerful desire to maintain frequent and regular contact with the child.

So what have the courts decided?

If you're hoping for a definitive legal answer, you re not going to find it. This is due to a lack of uniformity in the laws across the country. Courts throughout the State of New York, where our firm is headquartered, have permitted some relocations to occur, while denying others based on the specific facts of each case. The best interest of the child standard is discretionary, and its application often varies from court to court and judge to judge, making it extremely difficult to predict how courts will decide.

Over the years, our firm has helped parents navigate these uncertain waters and find solutions that work for the entire family. We have represented both custodial and non-custodial parents and understand the guidelines courts use to make their decisions, as well as the key issues all parents should be familiar with when considering such a move.

Since Tropea v Tropea, the law in New York is a best interests of the child standard. The burden on the parent seeking to relocate is to demonstrate that the move would be in the child's best interest. This standard requires the court to determine each relocation matter according to the specific facts and circumstances of the case.

Some of the factors that the courts consider in determining the best interests of the child include each parent s motives for seeking or opposing the move, the strength and continuity of the child's relationship with the non-custodial parent, the impact the move would have on the non-custodial parent's future visitation with the child, and the potential enhancement of both the child and custodial parent's lives that could ensue from the move. Often, relocation pits the interests of the warring parents against each other, placing the child in the middle of the fight.

The court will often look at the preference of the children in determining how to rule in relocation cases. Often the children are provided with a law guardian - a lawyer who represents the position of the children throughout the litigation. The judge may have a private session with the children, away from parents and lawyers, to hear their views directly. It is up to the judge to decide how much weight to give to the children s views and opinions -- taking into consideration their age and other factors. This type of litigation can be very difficult for children who often feel like they must choose between their parents.

Before the custodial parent takes any action towards relocating, it is important for both the custodial and non-custodial parents to consult with an attorney to determine the merits of their respective cases. Non-custodial parents have a right to regular and meaningful contact with their children. This gives them the right to file an application with the court seeking to prevent the relocation from occurring, or even for custody of the children. A non-custodial parent's chances of prevailing are stronger when he or she has been exercising current visitation orders, and has substantial regular contact with the children.

Prior to the Tropea decision, New York had one of the most restrictive laws in the country regarding relocation. When courts found that the move would cause disruption to the non-custodial parent s meaningful and regular access to the child, a presumption existed that the move was not in the child s best interest, and the custodial parent seeking to relocate was required to demonstrate exceptional circumstances. Generally, economic necessity or health-related reasons were required to establish exceptional circumstance. Only after overcoming that hurdle did the court consider the child's best interests.

In Molly's situation, a court would likely look at Joe's current visitation schedule with Julie. If he hardly visits with his daughter, it would, obviously, be difficult for him to argue that the move will severely harm their relationship. If Joe, on the other hand, is exercising maximum visitation including mid-week visits and is involved with Julie s school and extracurricular activities on a regular basis, he has a much stronger case, but it would not necessarily mean that Molly would be prevented from moving with Julie. Other factors the court would likely look at in making a decision would be Julie s relationships with extended family members of both parents and how the move would impact those relationships.

Job mobility based on need is a huge factor in today s economy and could be the linchpin of Molly s case for moving to Phoenix. Computer programmers in some locations may be a glut on the market, and the court would look at the efforts Molly has made, if any, to find comparable employment in the New York area to prevent the need for relocation. She would need to show the financial benefits she would accrue by remaining with her current company, any cost of living advantage, and perhaps better schools and improved quality of education for Julie that the move offers.

When the custodial parent is permitted to relocate with the children, either upon the consent of the non-custodial parent or by permission of the court, a new visitation order must be written, based on the specifics of the case. Generally, when the distance of the move is too far to allow for frequent weekend visits, the visitation schedule will allow for extended visits over summer vacations and school holidays. There has been some argument made that these types of extended visits will allow the parent interaction with the child in a more normalized domestic setting than would be provided with alternate weekend visits, which is typical of most visitation orders. This, however, would prevent the non-custodial parent from being involved in day-to-day school and recreational activities.

In summary, there are no hard and fast rules for how courts will decide this highly-charged relocation issue. Estranged parents caught up in the struggle must seek legal help to analyze the specific facts of their case. The courts have varied in their decisions, including those where the economic factor looms large. There have even been cases where the custodial parent has been allowed to relocate to another country based on the employment opportunities of her new spouse, while in other cases the economic argument fails to resonate and the move is disallowed. Every case is different. Specific circumstances, and how they are presented to the court, most often determine the outcome.

*Molly is a compilation of client experience.

Bruce Listhaus is a partner and Francine Silverstein an associate in the law firm of Gorlick, Kravitz & Listhaus, P.C., a labor and employment law firm with a department that concentrates in family and matrimonial law matters. The firm has offices in New York City, Buffalo and Newark, N.J. They can be reached at (212) 269-2500.

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