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In determining whether a custodial parent has the right to relocate with the child depends on whether doing so would be in the best interests of the child. H.K. v R.C. 2021 NY Slip Op 21190 


When a court makes a decision about custody, parent access, and other aspects related to the custody and care of a child, the court’s decision must be based on what is in the best interests of the child.  In H.K. v R.C., the Supreme Court, New York County, was asked to decide whether a parent’s request to relocate over the objection of the noncustodial parent was in the best interests of the child.

The parties have a parenting agreement dated October 28, 2015 (the “Agreement”), which was incorporated into the Judgment of Divorce that was signed on September 19, 2016. Under its terms, the parties have joint legal custody of the child, but it is specified that the child is to “reside primarily with the Mother.” The Agreement provides father with a regular access schedule of alternate weekends, along with one weekly weekday dinner. It also entitles him to substantial holiday and vacation parenting time.

At the time the parties entered into the Agreement, the mother and child were residing in the Upper West Side apartment where the parties lived during the marriage, while the mother had lived in Livingston, New Jersey, a suburban community some 25 miles west of New York. The father’s alternate weekend access takes place in Livingston, requiring him to drive back and forth each time to do the pick-ups and drop-offs. The weekly dinners occured in Manhattan.

Included in the Agreement was a relocation clause which prevented the mother from relocating outside of Manhattan without the father’s consent or an order of the Court.  On January 4, 2021, the mother sent an email to father letting him know that she had made plans to relocate to Scarsdale. She stated that the reasons for this plan was that COVID-19 had devastated New York City, resulting in thousands of families leaving the city, including more than 100 students from child’s school.  She stated that she was concerned about the lasting damage to the public school system and how it would negatively impact the child and his future. She felt that Scarsdale would be a better place to meet the education and social needs of their child.  She also noted the Scarsdale also was convenient for her commute to work to Manhattan. She also suggested a modification to the Agreement such that she would assume responsibility for transporting the child to and from Livingston on one of the alternate access weekends each month.

The father refused to consent to the relocation and suggested that they relocate to Livingston instead. As result, the mother sought court permission to do so by  filing an Order to Show Cause on March 8, 2021.

When determining whether a parent should be permitted to relocate with the child, the court must first and foremost consider what is in the best interests of the child.  However, the courts now that a multifaced “best interests” approach. Such an approach requires the court to consider a range of factors such as each parent’s respective reasons for moving and opposing the move, and the degree to which the custodial parent’s and the child’s life may be enhanced economically, emotionally, and educationally. See Matter of Tropea v Tropea, 87 NY2d 727 (1996)

The two main reasons that the mother wants to move to Scarsdale are wanting to escape the problems that COVID has caused Manhattan and seeking the benefits of suburban life. The court dismissed the COVID reason.  In the time since the mother petitioned the court to move to Scarsdale, the environment in Manhattan has changed. Because of vaccinations, schools and businesses have reopened, and things are looking quite different. As a result, the court viewed COVID as a nonfactor. Looking at the suburban life factor, the court noted that the father, by moving to Livingston, NJ, recognized the advantages of the suburban life and did not have to make a judgement as to whether suburban life is better than city life.

Next the court considered each parent’s respective reasons for seeking or opposing the move. The mother’s reasons centered on what she felt was in the best interests of the child, while the father seemed to focus more on his own convenience. While the mother and child relocating to Scarsdale would make the father’s life somewhat more difficult, there is nothing to indicate that it would make it unduly difficult.

In the final analysis, the proposed move here of 20 miles will have little to no impact on either the quality or quantity of father’s parenting time with the child. This, coupled with the other factors that have been discussed, compelled the court to conclude that the proposed location was in the child’s best interests and should be allowed.

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