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. This rule was articulated by the New York Court of Appeals in 1996 in the landmark cases of Tropea v. Tropea. The Tropea case does not prohibit relocation of a custodial parent with a child. However, it has set a high burden of proof on the custodial parent who wants to move with their child or children over the objection of the non-custodial parent.
There is no fast and firm rule as to how far a parent can relocate with a child before the Tropea analysis becomes appropriate. In one odd case from downstate, the First Department of the Appellate Division found that even a move within the Borough of Manhattan was far enough to trigger a Tropea analysis. Other courts have given custodial parents significantly greater latitude before invoking Tropea. The application of this rule will vary greatly from county to county and even from judge to judge.
It would be a stretch to say that all judges are opposed to relocation and are likely to deny a request for relocation. However, keep in mind that the judges and their families live in the communities from which the petitioning party wishes to move away. The judge chose to live in the community in question and raise his or her children there. One must assume that there is a great degree of work to be done to convince the judge that the grass is greener elsewhere. This is not to say it cannot be done, but it is not easy to do.
According to Tropea in evaluating relocation by a custodial parent a court should consider and give the appropriate weight to all relevant factors. These factors include, but are not limited to, the following.
(1) The reasons given by the parties for proposing or opposing the move;
(2) The quality of the child’s relationship with the parties;
(3) The impact of the move on quantity and quality of the child’s future time with the non-custodial parent;
(4) The degree to which the child’s life will be enhanced educationally, economically and emotionally by the move;
(5) The feasibility of preserving the relationship between the non-custodial parent and the child; and
(6) The existence of a geographic relocation restriction agreed to by the parties, if any.
These factors will be explored in the next post in this series on relocation. Of course, if the parties agree to the relocation there will be no need for a judicial determination of the question.