Because we are living in a mobile society, the problem of a move to a distant state (and sometimes even a country) is a vexing problem, both for the parents and the courts as well. As this blog has commented on this issue before, advising never to use self help and take children away from their in-state residence, without first applying to the court, is a necessity. There are prior cases that have ruled for and also against the relocation, based upon the proposition that the move must be in the children's best interest.
The difficulty that arises from such rule is that the interpretation of what is in the best interest of the children, varies from judge to judge, and is usually decided based upon the peculiar circumstances and facts of each case. In discussing this rule the courts do set forth the parameters that they have used to reach their decision. In a recent case
Knight v. Knight, 2013 NY Slip Op 02249, the appellate court affirmed the ruling of the court below forbidding the mother to relocate to North Carolina where her fiancé was living and working, just three month after the parents' agreement to have joint legal custody, with the mother having residential custody. The father requested that the court change residential custody to him, which was also denied and affirmed by the appellate court.
The Knight court went on to explain that someone seeking to modify an existing custody agreement would have to show a change of circumstances based upon the record of trial. It also stated that the parent seeking the relocation bears the burden of proving by a preponderance of evidence that the move would benefit the children. The factors that must be considered include the children's relationship with each parent, the effect of the move on contact with the non-custodial parent, the potential enhancement to the custodial parent and the children due to the move, and each parent's motives for seeking or opposing the move.
The court added that both parents have a close and warm relationship with the children and have taken active roles in their upbringing. Further, the mother failed to demonstrate that relocation was warranted based on economic necessity. As such the move was denied.
It must be pointed out that this case may have resulted in a reversal if heard by another court. The point is that there are no hard and fast rules to apply to all custody relocation matters.
