Divorced Parent Seeks to Relocate Children Out-of-State Over Other Parent’s Objections

by Mike Mintz on October 4, 2012 · 0 comments

in Family Law,martindale.com

What factors should a court consider when the all too often issue arises where one parent wants to move the children to a different state over the other parent’s objections?  The New York Supreme Court recently wrestled with this thorny issue in the case Byron v Davis,  2008/9023, 2012 NY Slip Op 22240 (8/28/12 N.Y. Sup. Ct., Monroe Co.)

In Byron, the mother sought court approval to relocate her two talented children from New York to Washington D.C. The father/non-custodial parent objected. Both parents are ministers.

The relevant factors include each parent’s “reasons for seeking or opposing the move; the quality of the relationships between the child and the custodial and noncustodial parents; the impact of the move on the quantity and quality of the child’s future contact with the 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.” The primary focus is the best interests of the two children.

The two children expressed an interest in remaining in New York-a determining factor for the court, although not a decisive one.

As for the parents, they were both fine parents, exhibiting fine parenting skills.  The children were thriving in their New York community. They excelled academically and were heavily involved in extra-curricular activities like the Boy Scouts and music lessons.

The mother’s reason for wanting the move was personal-she would receive a substantial career advancement and double the salary she is currently earning.  She claims that she was able to enroll the children at much better schools in Washington that would afford them better academic opportunities.  She further contends that her children would have no trouble finding new friends as they are both well adjusted.  She also argued that Washington D.C. has a much bigger African American community, thereby making it easier for the children to find better role models and advantages.

The father, who opposed the move, argued that the children were thriving in New York, excelled in school and were active socially.  He claims to be close to his children.

While the court recognized that the mother was the children’s primary caretaker, there was no indication that the father was not capable of taking on a more active role in his children’s lives.

The mother bore the burden of proving that the move out-of-state was justified. The court reviewed the factors to be taken into account in such cases. As for the first factor- the motive for moving, the court was torn between the mother’s motive for moving-advancing her career, and the father’s objection-his need to spend time with his children.

The second factor-the quality of the parents’ relationship with the children-seems to be equally strong on the mother’s and father’s parts.

The third factor-the impact of relocating on the relationship with the father-would be very significant.

The fourth factor-the economic, emotional and educational enhancement from relocating-was not deemed significant.  As for the emotional upset the children will experience from the relocation, that was harder for the court to quantify.  There was no evidence that either child suffered from any emotional difficulties.  Also, the mother had no extended family in Washington to support the children.  There was no evidence that the children’s emotional well-being would be favorably impacted by the move to Washington or that it would be harmed by staying in New York.

Since both parents were clergymen, the court also took into account the role of religious exposure in evaluating the emotional impact of the relocation on the children.  The court found that the children’s religious education would not be significantly enhanced by a move to Washington.

The fifth factor-the feasibility of the father preserving his relationship with his children after relocation-was also determined in the father’s favor. The father would not be able to sustain the quality or quantity of his relationship with his children after the move.

Finally, the court took note of the children’s clear desire to stay in New York.  Their wishes do have significant impact on the court’s decision, especially since their expression to remain in New York never wavered.

The court concluded that the mother failed to sustain her burden of proving that relocating to Washington was in the children’s best interests, notwithstanding her solid reasons for wanting to move.  Consequently, the court denied the mother’s petition to relocate to Washington.

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