What happens to custody when your former spouse remarries someone that lives out of State?
Nuts and Bolts of Relocation
Relocation - How it's treatedWhen I draft settlement agreements for divorcing parties, one of the issues I always discuss is the "radius clause", a term that most people are not familiar with. What is the "radius clause"? In plain terms, it means the distance by which you agree to live in relation to your former spouse so that he/she can exercise his/her parental access to your children. While most people feel it's a "small" issue, in my experience as a divorce attorney, it is an "important" issue. Primarily, people should understand that one day, things will change. You will find a new life after divorce. In some instances, this new life would involve falling in love again with some who lives outside of New York which would affect the custody agreement you may have with your former spouse. In these instances, when your circumstances require relocation outside of what the radius clause permits, you may lose physical custody of your children if you move without the proper court order. In order to move outside of the agreed "radius", a person must commence an action for relocation usually in the Family Court. Each relocation is considered and evaluated on its own merits and consideration of all relevant facts with predominant emphasis on ensuring that the outcome serves the best interest of the child. While the rights of the parents are unquestionable important, the child's needs should be accorded the most weight. Preponderance of evidence that the proposed move would serve the child's best interest is necessary for a relocation to be granted. The landmark case that governs relocation cases is Tropea v. Tropea, 87 N.Y. 2d 727, 642 N.Y.S. 2d 575 (1996). In Tropea v. Tropea, 87 N.Y. 2d 727, 642 N.Y.S. 2d 575 (1996), The parties' settlement agreement gave the Mother sole custody of their children subject to Father's liberal visitation; but it barred her from relocation to Onondaga County, where both parties resided without judicial approval. Mother sought relocation to Schenectady because her fianc?e worked there and they already purchased a home there. Mother was willing to cooperate with Father's liberal visitation and offered to drive the children to Father's home. The Court granted relocation and found that the children's best interests and the schedule proposed by the Mother afforded the Father frequent and extended visitation. In another case, the father was not entitled to change in custody of the parties' 2 children from the mother to himself on the basis of the mother's relocation to an area 260 miles away where (1) the geographic move did not deprive him of regular and meaningful access to his children since a 5 to 6 hour drive was not impracticable under a visitation schedule, (2) record revealed no intent on the part of the mother to curtail the father's visitation, and each party had demonstrated willingness and ability to share in transportation of their children, (3) the parties had agreed, 3 months prior to father's petition, that mother would be custodial parent, (4) both children expressed preference to remain with their mother so long as they could have frequent visitation with their father, (5) the law guardian opposed change in custody, and (6) the area to which mother relocated was an area in which her parents lived and operated a business, and the children were familiar with area as they had spent many summers there. Schouten v Schouten (1989, 2d Dept) 155 App Div 2d 461, 547 NYS2d 126, app den (1989) 74 NY2d 616, 549 NYS2d 961, 549 NE2d 152 and (criticized in Tropea v Tropea (1996) 87 NY2d 727, 642 NYS2d 575, 665 NE2d 145). In some cases, when exceptional circumstances exist warranting the relocation, it is permitted. In one case, the mother demonstrated exceptional circumstances warranting her relocation to Idaho (from New York) with the parties' 2 infant children, although the move would deprive father of regular access to children, where (1) the parties had led a transient lifestyle during their marriage, and had established no long-term domicile, (2) the mother established an economic necessity for her move to Idaho by demonstrating her inability to find affordable housing and child care in New York on her limited $ 25,000 salary, and (3) the mother would be closer to her family in Idaho and would have reduced living expenses, as shown by her own mother's testimony that she could provide no-cost housing, full-time employment and health insurance, as well as assist with child care. Amato v Amato (1994, 2d Dept) 202 App Div 2d 458, 609 NYS2d 51, app den (1994) 83 NY2d 759, 616 NYS2d 14, 639 NE2d 754. As discussed in the preceding paragraph, economic necessity can be a ground to seek relocation. In Wirth v. Wirth, 56 A.D. 3d 893, 870, N.Y.S. 2d 409 (2nd Dept. 2008), the Court held that the Mother established by preponderance of evidence that relocation to Florida was in the best interests of the parties' child. Mother cannot meet her expenses after moving with the child from the marital residence. Even if Mother obtained employment commensurate with the salary of her previous employment, she would not be able to afford an apartment in Long Island where the Father resided. The Court remitted the matter for determination of an appropriate relocation visitation schedule. Overall, as in any custody litigation matter, the court is guided by what is in the best interest of the child. In most instances, the court would have an "in camera" or confidential meeting with the child where all parties and attorneys are excluded. The court puts a lot of weight on the child's wishes especially when the child presents himself/herself in a mature manner. Each relocation case is difficult. In most instances, both parents are loving and entitled to maintain and foster a relationship with their children. It is therefore important, before signing your Stipulation of Settlement, to understand the importance of the radius clause and potential relocation of your former spouse.
Tropea v. Tropea, 87 N.Y. 2d 727, 642 N.Y.S. 2d 575 (1996)For further reading, please review the case above.