Relocation of a Child to a Different State Away from the Father

My question involves a child custody case from the State of: NY

I recently received a promotion from work that requires me to relocate from NY State to S. Carolina. I am currently married and my wife has a child with joint custody with his father but she has "residency" with the child. We have a good relationship with the father but we are not sure what the laws are regarding moving the child out of state. It is in the best interest of the child to move with us )mom, sister and I) versus living with his father in NY who is single. The child does not want to live with dad and will be 13 in Sept. His quality of life would be better in the south. We dont WANT to have to move away from the father but due to work I have to.The move is for the better of the family as a whole. As far as visitation, we will be willingly making arrangements for the summers and holidays for the child to see his father as well as the father may reside with us anytime he would like to visit. My question is, Can we move out of NY? In the divorce decree it simply states the child would have residency with the mom but does not have any stipulation as to any state. Can he refuse to let him leave the state? Any information would be greatly appreciated.

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Quoting Mikeg13

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My question involves a child custody case from the State of: NY

I recently received a promotion from work that requires me to relocate from NY State to S. Carolina. I am currently married and my wife has a child with joint custody with his father but she has "residency" with the child. We have a good relationship with the father but we are not sure what the laws are regarding moving the child out of state. It is in the best interest of the child to move with us )mom, sister and I) versus living with his father in NY who is single. The child does not want to live with dad and will be 13 in Sept. His quality of life would be better in the south. We dont WANT to have to move away from the father but due to work I have to.The move is for the better of the family as a whole. As far as visitation, we will be willingly making arrangements for the summers and holidays for the child to see his father as well as the father may reside with us anytime he would like to visit. My question is, Can we move out of NY? In the divorce decree it simply states the child would have residency with the mom but does not have any stipulation as to any state. Can he refuse to let him leave the state? Any information would be greatly appreciated.

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The reason Dad can't have custody is ... ?

There is no reason. I am relocating for work.

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Quoting Mikeg13

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There is no reason. I am relocating for work.

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Mom can very easily switch custody over to Dad.

If she doesn't want that she'll have to go to court and request permission from the court since there are already court orders in place. The burden of proof will be on her to show that the move is in the best interests of the child - not you, not Mom, but the child.

Is she prepared to offer the same parenting time and absorb the cost of transportation?

No, she doesn't want to switch custody and her son wants to live w her. She will be offering all summers with and every other holiday. Transportation being shared.

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Quoting Mikeg13

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No, she doesn't want to switch custody and her son wants to live w her. She will be offering all summers with and every other holiday. Transportation being shared.

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In NY her sons wishes are not going to control - and there's no reason why Dad should have to pay for transportation when he's not creating he distance.

Again I ask, is Dad's time going to be lessened in ANY way?

It depends, its every other weekend which equals 52 days a year but if it were all summer and holidays the combined days would actually be more visitation time. I appreciate you spending your time answering me. I have asked you many times in the past and your info helped me tremendously. I actually had won previous lawsuits I had asked u about. Thank you again. Like I said, the father is a great guy, we all have a great relationship even w his girlfriend. We just aren't sure how he is going to react when we bring it up and we are trying to prepare ourselves. I HAVE to go, I really don't have a choice. I'm just not sure whats going to happen to our family if they cant go w me.

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Quoting Mikeg13

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It depends, its every other weekend which equals 52 days a year but if it were all summer and holidays the combined days would actually be more visitation time. I appreciate you spending your time answering me. I have asked you many times in the past and your info helped me tremendously. I actually had won previous lawsuits I had asked u about. Thank you again. Like I said, the father is a great guy, we all have a great relationship even w his girlfriend. We just aren't sure how he is going to react when we bring it up and we are trying to prepare ourselves. I HAVE to go, I really don't have a choice. I'm just not sure whats going to happen to our family if they cant go w me.

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Then what Mom needs to do is formulate a decent parenting plan, stating the visitation times and making sure it's clear that Dad will actually get more time ... and that she'll suck up the costs of transportation.

Relocation cases are so difficult when both parties aren't in agreement. On the one hand, Mom believes that the move will benefit the child. And on the other hand, Dad feels like he's losing out somehow. I think it'd be worthwhile for her to speak with a local attorney who knows how the courts tend to rule in your locale. She'll be able to get a good feel for what she can expect.

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Quoting Dogmatique

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Then what Mom needs to do is formulate a decent parenting plan, stating the visitation times and making sure it's clear that Dad will actually get more time ... and that she'll suck up the costs of transportation.

Relocation cases are so difficult when both parties aren't in agreement. On the one hand, Mom believes that the move will benefit the child. And on the other hand, Dad feels like he's losing out somehow. I think it'd be worthwhile for her to speak with a local attorney who knows how the courts tend to rule in your locale. She'll be able to get a good feel for what she can expect.

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I would like to add that NY to SC is not far by plane at all, and if dad could be offered at least one weekend a month that might make this more civil. There is at least one three or four day weekend off school every month. Offering dad those weekends, at mom's expense for transportation, plus maybe half of the summer and half of the holidays, might be a more attractive arrangement to dad.

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Quoting Mikeg13

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My question involves a child custody case from the State of: NY

I recently received a promotion from work that requires me to relocate from NY State to S. Carolina. I am currently married and my wife has a child with joint custody with his father but she has "residency" with the child. We have a good relationship with the father but we are not sure what the laws are regarding moving the child out of state. It is in the best interest of the child to move with us )mom, sister and I) versus living with his father in NY who is single. The child does not want to live with dad and will be 13 in Sept. His quality of life would be better in the south. We dont WANT to have to move away from the father but due to work I have to.The move is for the better of the family as a whole. As far as visitation, we will be willingly making arrangements for the summers and holidays for the child to see his father as well as the father may reside with us anytime he would like to visit. My question is, Can we move out of NY? In the divorce decree it simply states the child would have residency with the mom but does not have any stipulation as to any state. Can he refuse to let him leave the state? Any information would be greatly appreciated.

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Who is the step-father to decide what is best for the child?

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Quoting T53147

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Who is the step-father to decide what is best for the child?

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Everybody has the right to have an opinion. Its whether or not its appropriate for them to articulate t.hat opinion that is generally in question. I do not necessarily believe that it is inappropriate for a stepparent to articulate their opinion about the best interest of their stepchild...unless they are trying to control the situation, which of course would be inappropriate.

This particular stepparent has received a promotion that he wants to accept...because he believes that it is in the best interest of his family. His family includes a stepchild with a father who is involved on an every other weekend basis...and there are no siblings in dad's home, so its not unreasonable for stepdad to believe that its in the child's best interest to remain in the primary custody of the mother.

Its not impossible to make that happen.

The current standard applied by the majority of courts is that the request to relocate the child out of state be made in good faith, that the child will not suffer harm as a result, and the move will not interfere with the relationship of the other parent. In the old days the answer was often just a plain "no" but today courts, and most state laws, recognize that we are a mobile society and the need for relocation often arises for legitimate reasons. Best interest of the child is not the overarching standard for this particular issue, although arguably that is what the standards are seeking to promote.

Since the child lives in the home and care of the step-parent, I would say that on a day-to-day basis the step-parent is making a vast number of determinations for what is in the best interest of the child. Like whether s/he can go to the movies, or do homework. But a job transfer is a fairly compelling need. And the relocating parent is NOT likely to be saddled with the other parent's airfare for visitation. Perhaps the other parent should consider relocating too in order to spend time with his child? That might be in the best interest of the child as well. Lots to consider.

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Quoting jdbofky

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The current standard applied by the majority of courts is that the request to relocate the child out of state be made in good faith, that the child will not suffer harm as a result, and the move will not interfere with the relationship of the other parent. In the old days the answer was often just a plain "no" but today courts, and most state laws, recognize that we are a mobile society and the need for relocation often arises for legitimate reasons. Best interest of the child is not the overarching standard for this particular issue, although arguably that is what the standards are seeking to promote.

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The burden of proof actually varies from state to state. In this instance it's up to the relocating parent to make her case before the court. In my state it's the opposite - the non-relocating parent must show why the move does not meet the standards of best interests.

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Since the child lives in the home and care of the step-parent, I would say that on a day-to-day basis the step-parent is making a vast number of determinations for what is in the best interest of the child. Like whether s/he can go to the movies, or do homework. But a job transfer is a fairly compelling need. And the relocating parent is NOT likely to be saddled with the other parent's airfare for visitation. Perhaps the other parent should consider relocating too in order to spend time with his child? That might be in the best interest of the child as well. Lots to consider.

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It's not uncommon at all - in ANY state - for the court to order that the relocating parent be responsible for transportation ... including airfare.

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Quoting Dogmatique

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The burden of proof actually varies from state to state. In this instance it's up to the relocating parent to make her case before the court. In my state it's the opposite - the non-relocating parent must show why the move does not meet the standards of best interests.

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Yeah, that's why I said most. What I described is the majority view, but state laws differ widely. I believe (pretty sure, but I am not positive) that NY follows the policy I described.

In my state the relocating parent must file a Petition to Relocate. The petition must include a plan for how transportation will be handled and the court will go through the ordinary analysis of how costs are allocated under any parenting plan submitted to it. The ability of each party to pay is given great weight. The presumption is 50-50 when the child is being flown to visit another parent. I cannot imagine it would order more to fly the other parent. Non-custodial parents quite often bear more of the costs of many things, including medical insurance, orthodontics, etc. as a practical matter. But the court is not going to allocate blame to a party just because they relocated out of necessity.

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Quoting jdbofky

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Yeah, that's why I said most. What I described is the majority view, but state laws differ widely. I believe (pretty sure, but I am not positive) that NY follows the policy I described.

In my state the relocating parent must file a Petition to Relocate. The petition must include a plan for how transportation will be handled and the court will go through the ordinary analysis of how costs are allocated under any parenting plan submitted to it. The ability of each party to pay is given great weight. The presumption is 50-50 when the child is being flown to visit another parent. I cannot imagine it would order more to fly the other parent. Non-custodial parents quite often bear more of the costs of many things, including medical insurance, orthodontics, etc. as a practical matter. But the court is not going to allocate blame to a party just because they relocated out of necessity.

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Whether you can or cannot imagine something, the fact remains: relocating parents can be and are ordered to absorb the ENTIRE cost of visitation. There is also an option available should the relocating parent object to paying 100% of travel.

You may hold all knowledge, and I admittedly don't. I do have a pretty good handle on how things work in Florida, though, and I've described it quite accurately. "I can't imagine" is a figure of speech based on experience, not pie-in-the-sky speculation. But if you have case law with such a result I'd be interested in reviewing it.

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Quoting jdbofky

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You may hold all knowledge, and I admittedly don't. I do have a pretty good handle on how things work in Florida, though, and I've described it quite accurately. "I can't imagine" is a figure of speech based on experience, not pie-in-the-sky speculation. But if you have case law with such a result I'd be interested in reviewing it.

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There is not going to be any case law on that particular issue...or if there is, its going to be rare. These matters are decided at the family court level (where decisions are not published). Its rare for that kind of matter to go to an appellate level.

Our views are based on many years of observations. Why should a non-relocating parent be responsible for the costs of visitation when the other parent created the distance and caused the costs to happen? Are there deviations from that? Of course there are, but they are deviations based on specific factors.

No case law on family law? Where did you get that idea? There are a vast number because appeals are made and establish the controlling law on the topic of family law. That's how the law works.

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Quoting jdbofky

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No case law on family law? Where did you get that idea? There are a vast number because appeals are made and establish the controlling law on the topic of family law. That's how the law works.

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She said there isn't going to be any on this issue, not family law in general. She also conceded that some may exist but that it is rare.

Nonsense. Mize v. Mize 621 So.2d 417 is a Florida case specifically on the point I made, that it is a balancing test the court will apply and there is no presumption that one parent has to bear the transportation costs of the other. Not rare at all.

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Quoting jdbofky

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No case law on family law? Where did you get that idea? There are a vast number because appeals are made and establish the controlling law on the topic of family law. That's how the law works.

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I was talking about case law on travel expenses. People just do not spend the 10s of thousand of dollars necessary to take something to the appellate court, over travel expenses. You are certainly free to try to find some, if you like.

Also, the purpose of appeals is NOT to establish controlling law. Yes, published appellate cases often set standards for the use of existing laws, and sometimes even strike down existing laws, but the main purpose of an appeal is to attempt to override a decision made by a judge, that is believed to be contrary to law.

Something that seems to be missed here is the fact that the law comes either from a statute saying how a thing will be handled or case law on the topic. If you have neither, you don't have law. Opinions on what is right and wrong have nothing to do with the matter. The law comes from statutes and case law. If you assert something is law, you MUST cite to one or the other. It's that simple.

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Quoting jdbofky

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Something that seems to be missed here is the fact that the law comes either from a statute saying how a thing will be handled or case law on the topic. If you have neither, you don't have law. Opinions on what is right and wrong have nothing to do with the matter. The law comes from statutes and case law. If you assert something is law, you MUST cite to one or the other. It's that simple.

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Courts do not "make law". Legislatures make law, and courts interpret and enforce those laws. Yes, case law is frequently cited in court cases, and the purpose of citing case law is to show how the higher courts have already interpreted the laws enacted by legislation. In fact, it is highly frowned upon for a jurist to attempt to "legislate from the bench".

So no, law does not come from either statutes or case law. Law comes from statutes and sometimes common law.

That case is not about the point you made at all. The point you are trying to make is that the costs should be shared. That case was about whether the child should be allowed to leave. It mentions transportation costs three times in that whole document. The first is when it mentions that she offered to pay the transportation costs, and the remaining two were used in the "balancing test" to determine if it would even be possible for the transportation costs to be met by one or both parents. It does not say that both parents will be required to share the transportation costs.

I get you are trying to do what is best for your family. But it does not come off well that you want to effectively punish dad financially for you getting a promotion.

Also, where did Florida come in? Wasn't this all starting in NY?

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Quoting readytoleave

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That case is not about the point you made at all. The point you are trying to make is that the costs should be shared. That case was about whether the child should be allowed to leave. It mentions transportation costs three times in that whole document. The first is when it mentions that she offered to pay the transportation costs, and the remaining two were used in the "balancing test" to determine if it would even be possible for the transportation costs to be met by one or both parents. It does not say that both parents will be required to share the transportation costs.

I get you are trying to do what is best for your family. But it does not come off well that you want to effectively punish financially for you getting a promotion.

Also, where did Florida come in? Wasn't this all starting in NY?

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Yes, this is a NY case and Florida has nothing to do with it.

So, you think that the parent who is NOT moving should be financially punished for the husband of the other parent getting a promotion? Seriously, the parent creating the distance is generally the parent responsible for transportation costs. There ARE exceptions, but the exceptions are not the norm.

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Quoting llworking

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Yes, this is a NY case and Florida has nothing to do with it.

So, you think that the parent who is NOT moving should be financially punished for the husband of the other parent getting a promotion? Seriously, the parent creating the distance is generally the parent responsible for transportation costs. There ARE exceptions, but the exceptions are not the norm.

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Whoops, Apparently my edit didn't come up quick enough. I definitely do not think that dad should have to pay any of the transportation costs. It was supposed to say "But it does not come off well that you want to effectively punish DAD financially for you getting a promotion." I just missed the word dad. I was not supporting the OP. I apologize for the confusion.

Courts do indeed make the law. That is called "common law" and except for Louisiana, the U.S. follows common law. Anyone who would say that the courts do not make law has never studied the law.

The assertion is that the parent seeking relocation will be obligated to pay travel expenses of the other parent. I stated that most jurisdictions will apply a balancing test to the question to determine who will pay. I cited a Florida case as an example, and I still ask whether there is a case on point in NY or any other jurisdiction with an opposite result. Things are not true simply because someone thinks an outcome is right.

This has nothing to do with punishment. Let me give a hypothetical to illustrate what I'm expressing here:

Smith is a secretary and Jones is a doctor. They get divorced and Smith is the custodial parent. Smith's employer relocates to another state and Smith is required to move to keep her job. Smith petitions the court for permission to relocate the children. The court will apply a balancing test, and if Dr. Jones has the greater means to pay Jones' travel cost then the court will so order. There will be no automatic order that Smith must pay Dr. Jones' travel costs merely because it would "punish" Jones for Smith relocating out of necessity.

That is how it works. That's what the Florida case shows, and given some time later today I'll find a NY case that does the same thing. Just to show it can be done. But NY has no statute asserting what is being claimed here, that much is for sure.

Even your hypothetical isn't addressing the same set of facts as what you presented. The child's mother does not have to move because of a job change. She is choosing to move because of her husband is choosing to accept a promotion. Both of which could be turned down. What you are doing is saying you want your cake and eat it too without compromising at all. You want to move, you want your wife to move with you, you want the child to move with you and won't consider custody change, and you want dad to foot half the bill. It just doesn't work that way, nor should it.

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Quoting jdbofky

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The court will apply a balancing test, and if Dr. Jones has the greater means to pay Jones' travel cost then the court will so order.

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A court may so order in your jurisdiction. At this time, we do not know what a court may do in other jurisdictions.

I have to agree with others. I see nothing in that case you cite regarding who bears the cost of transportation.

Okay, here is a New York case: Murphy v. Murphy 535 N.Y.S.2d 844

The court found that allowing the wife to relocate some 340 miles away did not substantially impair husband's visitation rights, the noncustodial parent had sufficient financial means and flexibility in his work schedule to be able to effectuate his visitation rights, and the parties had the ability to adhere to workable visitation arrangement. No order that the wife pay the husband's travel expenses.

Is there any case from any where holding what you all are insisting to be true? If you, you are offering very bad advice not based on any knowledge you have but only what you presume to be true. That's a poor way to give people advice, frankly. There are many many such cases. The notion that case law on the topic is rare is ludicrous.

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Quoting readytoleave

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E It just doesn't work that way, nor should it.

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Why? Because you say it is so? Do you have anything at all you can cite to? Anything? Statute? Case?

Who said anything about paying for the husband's travel expenses? We have been talking about the costs of transportation of getting the child to and from visitation. If dad wants to visit you guys, outside of normal visitation time, that would understandably be on him.

You also have been told that the info provided on this site regarding the transportation costs is a general rule, and that exceptions can be made. Can be, not Will be. You have been told there are little to no specific cases that address transportation costs exclusively one way or the other. Even your New York case, again, is about whether or not the child is going to be allowed to leave period, and not transportation costs exclusively. Transportation costs are just a small part of it, and are situational, and in MOST cases, falls on to the relocating parent. That's just the way it is. Who knows, perhaps your specific set of circumstances will be one of the exceptions to the rule. You are looking for something that says Dad will HAVE to pay half the expenses, and you aren't going to find it. You want us to prove to you that you are wrong, and we aren't going to be able to do it. Neither is going to be able to happen because it isn't 100% certain either way. All anyone can tell you is what most likely will happen.

Best of luck.

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Quoting jdbofky

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Okay, here is a New York case: Murphy v. Murphy 535 N.Y.S.2d 844

The court found that allowing the wife to relocate some 340 miles away did not substantially impair husband's visitation rights, the noncustodial parent had sufficient financial means and flexibility in his work schedule to be able to effectuate his visitation rights, and the parties had the ability to adhere to workable visitation arrangement. No order that the wife pay the husband's travel expenses.

Is there any case from any where holding what you all are insisting to be true? If you, you are offering very bad advice not based on any knowledge you have but only what you presume to be true. That's a poor way to give people advice, frankly. There are many many such cases. The notion that case law on the topic is rare is ludicrous.



Why? Because you say it is so? Do you have anything at all you can cite to? Anything? Statute? Case?

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That case is not on point because it is about mom getting permission to move...it does not address transportation costs. The family court orders that were appealed may have addressed the issue of transportation costs, but the appellate court decision did not.

I've been told many things on this site that make me wonder what law school people have attended (the answer being none). There are countless cases on this issue though one person said such cases are rare. The assertion that was made is that the relocating parent will HAVE to pay transportation expenses. That is patently untrue.

People who have no legal education and no basis in law for giving advice to others ought to be careful. If there is no statute and no case law to back up what you assert, then you are offering worthless opinion. New York and Florida (my state) have progressed to the point of applying a balancing test to these considerations. There is no notion of "punishing" the parent seeking to relocate, which is what others have been trying to imply. This is NOT an exception to any rule, it IS the rule. The factors used by the court in applying the balancing test may vary from state to state, but that's what most states now do.

A cursory search of Westlaw yields an overabundance of New York cases on this subject. They are numerous rather than rare.

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Quoting jdbofky

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A cursory search of Westlaw yields an overabundance of New York cases on this subject. They are numerous rather than rare.

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That are directly on point for the issue of who pays for transportation costs after a change of residence? Cause the 2 you've posted so far have nothing to do with that subject.

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Quoting jdbofky

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There is no notion of "punishing" the parent seeking to relocate, which is what others have been trying to imply.

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You are clearly having an issue with your reading comprehension here.

Perhaps your own education needs a wee bit more work, eh?

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Quoting jdbofky

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Courts do indeed make the law. That is called "common law" and except for Louisiana, the U.S. follows common law. Anyone who would say that the courts do not make law has never studied the law.

The assertion is that the parent seeking relocation will be obligated to pay travel expenses of the other parent. I stated that most jurisdictions will apply a balancing test to the question to determine who will pay. I cited a Florida case as an example, and I still ask whether there is a case on point in NY or any other jurisdiction with an opposite result. Things are not true simply because someone thinks an outcome is right.

This has nothing to do with punishment. Let me give a hypothetical to illustrate what I'm expressing here:

Smith is a secretary and Jones is a doctor. They get divorced and Smith is the custodial parent. Smith's employer relocates to another state and Smith is required to move to keep her job. Smith petitions the court for permission to relocate the children. The court will apply a balancing test, and if Dr. Jones has the greater means to pay Jones' travel cost then the court will so order. There will be no automatic order that Smith must pay Dr. Jones' travel costs merely because it would "punish" Jones for Smith relocating out of necessity.

That is how it works. That's what the Florida case shows, and given some time later today I'll find a NY case that does the same thing. Just to show it can be done. But NY has no statute asserting what is being claimed here, that much is for sure.

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Please quit. Just quit.

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Quoting Ohiogal

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Please quit. Just quit.

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It'd be one thing if s/he was responding to what was actually written versus what s/he thinks was written.

I'd like to apologize to Mike, however. His thread didn't need this oh-so-common derailing.

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Quoting jdbofky

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I've been told many things on this site that make me wonder what law school people have attended (the answer being none). There are countless cases on this issue though one person said such cases are rare. The assertion that was made is that the relocating parent will HAVE to pay transportation expenses. That is patently untrue.

People who have no legal education and no basis in law for giving advice to others ought to be careful. If there is no statute and no case law to back up what you assert, then you are offering worthless opinion. New York and Florida (my state) have progressed to the point of applying a balancing test to these considerations. There is no notion of "punishing" the parent seeking to relocate, which is what others have been trying to imply. This is NOT an exception to any rule, it IS the rule. The factors used by the court in applying the balancing test may vary from state to state, but that's what most states now do.

A cursory search of Westlaw yields an overabundance of New York cases on this subject. They are numerous rather than rare.

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What law school did you attend? Please share. I will wait. I know what law school I attended and that the Ohio Supreme Court licensed me as an attorney.

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Quoting jdbofky

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I've been told many things on this site that make me wonder what law school people have attended (the answer being none). There are countless cases on this issue though one person said such cases are rare. The assertion that was made is that the relocating parent will HAVE to pay transportation expenses. That is patently untrue.

People who have no legal education and no basis in law for giving advice to others ought to be careful. If there is no statute and no case law to back up what you assert, then you are offering worthless opinion. New York and Florida (my state) have progressed to the point of applying a balancing test to these considerations. There is no notion of "punishing" the parent seeking to relocate, which is what others have been trying to imply. This is NOT an exception to any rule, it IS the rule. The factors used by the court in applying the balancing test may vary from state to state, but that's what most states now do.

A cursory search of Westlaw yields an overabundance of New York cases on this subject. They are numerous rather than rare.

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New York attorneys disagree with you.

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Quoting Dogmatique

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It'd be one thing if s/he was responding to what was actually written versus what s/he thinks was written.

I'd like to apologize to Mike, however. His thread didn't need this oh-so-common derailing.

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And that right there is where Florida came in to play! I didn't realize the person that I have been engaging with was not the OP. My goodness that clears a few things up. My apologies.

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Quoting readytoleave

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And that right there is where Florida came in to play! I didn't realize the person that I have been engaging with was not the OP. My goodness that clears a few things up. My apologies.

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Not your fault m'dear.

I'm still looking for a post on this thread in which it is stated that the parent WILL - automatically - be told to bear the cost. And I'm still looking for a post on this thread in which it is stated that NY has a statute specifically describing same.

I have a feeling I'm going to be unsuccessful in my efforts.