New York Law: Relocation of a Custodial Parent: Part 2
A custodial parent seeking a court's permission to relocate with a minor child bears the burden of establishing by a preponderance of the evidence that the move would be in the child's best interests. The factors by which a court should determine if such a move would be in a child's best interests were established in the cases of Tropea v. Tropea.
Central among these factors, and at the real heart of the analysis, are the second, third and fifth of these factors. These are the quality of the child’s relationship with the parties, the impact of the move on quantity and quality of the child’s future time with the non-custodial parent, and the feasibility of preserving the relationship between the non-custodial parent and the child. These factors not only are central to the analysis if a relocation is in a child's best interests, they also indicate when a Tropea analysis is appropriate in the first place.
Basically, if the impact of the move on quantity and quality of the child’s future time with the non-custodial parent is negligible, then it really is not a relocation case. So a move by the custodial parent that allows the non-custodial parent to still enjoy most all of their present parenting time should not be subject to Tropea analysis. If the move involves changing school districts or other life changes that may impact the child, but not necessarily their time with the non-custodial parent, then this may raise some questions if there is joint legal custody and the parent's cannot agree on the change. So a move across town, to the next town, or even the next county, may not trigger a relocation analysis.
The impact of the move on quantity and quality of the child’s future time with the non-custodial parent may be the most important factor in a Tropea analysis. Relocation probably will be denied where the non-custodial parent always exercised substantial parenting time and that parenting time will be reduced substantially by the relocation. This especially is true where there is midweek visitation and the distance of the proposed move would prevent midweek visitation. Relocation also may be denied where it would deny the non-custodial parent of regular weekend parenting time with the child. Although this is far less of a hurdle than dealing with midweek visitation.
Where the non-custodial parent is part of the fabric of the child's daily life, exercising parenting time, going to school functions, helping with transportation for extracurricular activities, etc., the impact of the move on quantity and quality of the child’s future time with the non-custodial parent will be enormous. In such cases, a proposed relocation of a substantial distance probably will not be permitted.
On the other hand, where the non-custodial parent consistently failed to exercise all of his or her parenting time according to the existing custody order or otherwise generally is absent from the child's life, the impact of the move on quantity and quality of the child’s future time with the non-custodial parent will be minimal. In such a case, a distant relocation may be permitted.