One of the most difficult decisions to make after you have been awarded custody, and wish to relocate within miles of your residence, or to a distant state or foreign country is the effect such move will have on the child. To do so would necessarily include a consideration of the non-custodial visitation rights, and the relationship that the child has had with then non-custodial parent since the granting of initial custody by the court.
A recent case decided by an appellate court in New York (Ortiz v. Ortiz 2014 NY Slip Op 04202) has given both parents and their counsel a checklist of factors that the court will consider in deciding whether to grant permission to move to a distant location, in that case Michigan.
The court pointed out in its decision that the first consideration must be for the best interest of the child or children. The court stated, “Relocation may be allowed if the custodial parent demonstrates, by a preponderance of the evidence , that the proposed move is in the child’s best interests”and then went on to point out that each case must be decided upon its own facts and merits, and listed the factors it would consider, but not be limited by the list. They include:
1. Each parent’s basis for requesting or opposing the move.
2. The extent and quality of the relationship between parent and child.
3. The impact the move would have on the non-custodial parent in exercising visitation which would include the distance to travel and the inability to see the child more often which could affect the quality of the visitation period.
4. The degree by which the relationship between the custodial parent and child will be enhanced educationally, economically, and emotionally by the move.
5. The extent to which visitation may be altered to preserve the relationship between the child and the non-custodial parent.
It Is essential that when a relocation case is tried, you are able to give admissible evidence, to permit the court to reach a reasoned judgment as to which decision would better support the child’s best interest....not the parent’s convenience.
The court went on to observe that in order to rule on the appeal, the record must contain a sound and substantial basis by the court below to affirm the court’s determination, whatever it may be. It is another way of saying that the five points set forth above must be proved by a preponderance
of the evidence which should ordinarily include experts in education, health, and general welfare.
The court affirmed the decision of the judge in the court below, the Family Court, because its determination had a sound and substantial basis in the record. It further explained some of the reasons to affirm, which included that the child and mother were living in temporary housing they could no longer afford; the father was recently released from jail and had not made consistent or reasonable payments of child support; the mother would be able to afford adequate housing on her disability payments alone; the father after his release had not been exercising his visitation rights; and concluded that the extended visitation provided for the father would allow for a meaningful relationship with the child and that the court-appointed attorney for the child proposed that the move be allowed.
This case teaches us that only a well prepared case which will contain sufficient evidence will enable you to be successful in requesting a change of custody, or defending against the move The ultimate deciding factor will be whether the move will be in the child’s best interests.
