After a divorce, both parents are expected to pursue different endeavors which may involve getting new career opportunities or exploring new things while moving on with their separate lives. However, the fact remains that addressing certain matters after a divorce is easier when both ex-spouses remain in the same locale such as child custody and visitation.
Addressing the subject of relocating with a child after a divorce is better done with the help of a qualified New York child custody lawyer who has extensive knowledge of how each parent’s individual circumstances can affect the case. At The Law Office of Juan Luciano, our top-rated attorneys offer quality assistance to parents who are in need of skilled legal help. To learn more about how we can assist in your relocation and custody case, contact us today at (212) 537-5859.
Joint Custody and Relocation in New York
When parents share custody of their children, rules on relocation may vary from state to state. In New York, there is no specific set distance in which a parent may be allowed to move with their child or not. New York’s family court judges custody orders and relocation matters on a case-to-case basis depending on the child’s best interests. In addition to the child’s best interests, disruptions to visitations may also be an important factor the court will consider.
The subject of relocation after a divorce may be included by the spouses in their divorce agreement or their custody arrangement. Either the judge orders that both parents remain in a specific geographical region – such as within a borough or New York City – or both parents agree to the limitation. If the custody order does not address the matter of relocation, the custodial parent can petition the court for permission to relocate.
It is best to inform your co-parent if you have any intention of relocating along with your child. Working with your co-parent to address visitation and a new parenting time arrangement may increase the chances of the court approving your relocation. It is unwise to antagonize your co-parent especially when you share custody of your child. Ultimately, when deciding on whether to approve the relocation, the court may take into account the following conditions:
- The reasons of each parent for petitioning for the relocation and for fighting against the relocation
- How the relocation would impact the child’s current communication with the non-custodial parent, relatives, and other established relationships – in the case of siblings the family court would prefer not to separate siblings whenever possible
- How the relocation would impact the child’s well-being and quality of life should it push through
- The quality of the child’s relationship with their parents
- Whether the child would be able to maintain a good relationship with the non-custodial parent through a visitation arrangement
- The child’s preference, if they are mature enough to give an opinion
- Both parents’ ability to work together in co-parenting their child
Getting the confirmation of the non-custodial parent that they agree to the relocation or securing a court order from the family court approving the move is the most appropriate action when dealing with the matter of relocating with a child.
Impact on Child Support Obligations
Regardless of how near or how far the move would be, parents who are required to pay child support through an order would need to continue paying child support. The Interstate Child Support Unit has the authority to modify and enforce existing child support orders from another state or another country. The Law Department also has the ability to continue garnishing wages from a non-paying parent and can charge a payor parent with nonpayment of child support which can result in a criminal conviction.
Nonpayment of child support is punishable by law in New York under NY Penal Law § 260.05. If a parent is unable to pay child support without a valid reason or has purposely rendered themselves unable to pay child support through not maximizing their wage-earning capacity, they may be charged with criminal nonpayment. If a parent is convicted twice of nonpayment of child support, the maximum penalties they can receive is a prison sentence of up to 4 years and 5 years in probation. Nonpayment of child support in the second degree is a class A misdemeanor while a first-degree conviction is a class E felony.
If Your Co-Parent Objects to the Move
New York family courts typically do not allow a custodial parent to move with the child to another state without the consent of the noncustodial parent or a court order. In such cases, it may be possible that the court would require that the child spend some of their time, such as their summers, with the noncustodial parent, and the rest of their year with the custodial parent. Additional requirements such as the child communicating more frequently through phone calls or video conferences with the noncustodial parent may also be imposed.
This is not to say that the noncustodial parent’s parental rights have less weight than the custodial parent’s. In the case where parents share joint custody, each parent will still have the same decision-making responsibilities or legal custody regardless of who is in physical custody.
What Should Be Expected in Relocation Hearings?
While it is established that New York family courts will always consider the child’s best interests in their decisions, they will still hear each parent’s side and allow them to present their perspective for consideration. A guardian ad litem who would act as an advocate and a representative of the child’s interests may also be appointed to make sure that the child’s wellbeing is factored into the decision.
Parents requesting to be granted relocation rights may take the opportunity to present any information that would support the move such as why the new community would be beneficial for the child and the impact of the relocation to the existing order. The court may deny a petition if there are grounds that the noncustodial parent’s visitation would be severely diminished as a result of the move. But, if the parents are in agreement and have plans to retain the relationship despite the distance, the court may be more likely to approve.
If the court decides that the move is not in the child’s best interests and the custodial parent is not willing to give up relocating, they may ultimately decide on a change of physical custody. Custody of the child may be awarded to the current noncustodial parent and any existing child support order may also be modified in light of the change in custody.
New York’s family courts decide child custody and visitation cases based on their unique circumstances. Working with an experienced New York child custody attorney is crucial in determining your rights and responsibilities and navigating the process of petitioning to relocate with your child. If you’re a noncustodial parent, an attorney can also help in defending your visitation rights and presenting your objections to the relocation in court.
At the Law Office of Juan Luciano, seasoned New York family law attorney Juan Luciano and his team have helped many families deal with divorce. From its initial stages to post-divorce order modifications, our firm provides quality legal assistance and representation to defend our clients’ rights. We serve diligently to bring an efficient but dignified solution to the cases we handle. Contact us today at (212) 537-5859 to speak with one of our experienced New York child custody attorneys.