Moriarty & Dee, Attorneys at Law, in Buffalo, New York.

Relocation:

A great concern during and after a custody decision or agreement is the right of the custodial parent to relocate with the child to another part of the state, a different state, or even to a different country. In today's mobile society, the need to relocate can be triggered by any number of events, including remarriage, substantial job opportunities, health of the party or child, and other good reason. The right of relocation (referred to as "mobility" in Canada) pits the competing interests of the custodial parent (being "primary residential parent" in joint custody situations), the non-custodial parent and the child. The crux of the matter is the non-custodial parent's right to access to the child unhampered by distance problems.

The distance involved may be minimal--relocation to a nearby county with minimal impact upon the non-custodial parent's rights of visitation, or substantial--relocation to another part of the state or another state or country.

In New York, until 1996, a three-prong test was used to determine the propriety of a relocation:

1) the non-custodial parent was required to demonstrate that the proposed relocation would substantially impinge upon his or her visitation rights, 2) once the first test had been met, the parent seeking to relocate with the child was required to show that the relocation was dictated by an extraordinary circumstance and not just simply the whim or caprice of the relocating parent, and 3) assuming that the relocating parent could show an extraordinary circumstance, that parent still needed to show that the relocation was still in the child's best interest.

In 1996, in TROPEA V. TROPEA, 87 N.Y. 2d 727, the highest Court of the State of New York, the Court of Appeals, ruled that the sole test to be applied was the best interests of the child.
The TROPEA decision is actually three different cases joined for determination by the Court of Appeals in 1996.

The best protection a non-custodial parent can obtain to guard against the involuntary relocation of a child is strong language in the Property Settlement Agreement restricting the right to relocate, coupled with joint custody.

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