LAW AND THE FAMILY
Relocation Resolved
By Joel R. Brandes and Carole L. Weidman
The New York Law Journal
April 23, 1996
A
TOPIC THAT PROMISES to be the subject of considerable interest
in the days ahead is the new Court of Appeals ''relocation'' decision. Now, more than
ever, relocation is part of American life. Consequently, challenges to custodial parents'
seeking to relocate have been more frequent and are bound to become commonplace.
An initial framework for the basis of relocation was created in 1981 when the Court of
Appeals, in Weiss v. Weiss,1 carefully noted that visitation
is a joint right of the non-custodial parent and child, and that the mature, guiding hand
and love of a second parent is valuable to a child when the regular parent-child
relationship is nurtured by regular, frequent and welcome visitation. In the years that
followed, the higher courts focused their attention on the custodial parent's obligation
to justify the removal by showing a ''pressing concern'' for the welfare of the child or
''exceptional circumstances,''2 such as remarriage of the custodial
parent or economic necessity. The cases were problematic, and no one rule proved certain,
wreaking havoc among those searching for answers.
Just when it seemed all was hopeless and a workable solution would never be found, the
Second Department provided Radford v. Propper.3 Radford
provided the bar with guidelines that could be used in any relocation case. It
established a three-prong test that attempted to resolve the relocation dilemma4:
(1) Would the proposed move effectively deprive the non-custodial parent of frequent
and regular access to the child? If not, the move will be allowed;
(2) If so, are there exceptional circumstances permitting the relocation? and
(3) If there are exceptional circumstances, is the relocation in the ''best interest''
of the child?
While Radford was a profound source of study and analysis, it was only
marginally more helpful than its predecessors, leaving much to be desired in simplifying
or clarifying matters.
'Best Interest' Approach
The Court of Appeals has now armed us with Tropea v. Tropea and Browner
v. Kenwood.5 By abandoning the rigmarole, the Court has
empowered us with a broader, more customized, ''best interest of the child'' approach, an
approach that has proven itself enormously worthwhile in so many other arenas involving
custody. Notably, the opinion tips the balance in favor of the custodial parent,
authorizing relocation with the child to begin a new life or get a ''fresh start'' with a
new family unit.
Judge Titone, writing for a unanimous Court of Appeals, drew attention to the Court's
decision in Weiss, acknowledging the three-step process (Radford) as the
most commonly used formula to aid the lower courts in relocation cases and one that gave
great weight to whether the proposed relocation would deprive the non-custodial parent of
''regular and meaningful access to the child.'' The Radford theory is that children
can derive an abundance of benefits from ''the mature guiding hand and love of a second
parent'' and that, consequently, geographic changes that significantly impair the quantity
and quality of parent-child contacts are to be ''disfavored.''
In a complete turnabout, the Court of Appeals in its newest decision, an opinion that
has no paucity of intelligent reflection, reasoned that the ''legal formula that it has
spawned is problematic and, in many respects, unsatisfactory.'' The Court, in devouring
prior law, continued its highly effective reasoning stating the three-tierd analysis is
difficult to apply and erects artificial barriers to the courts' consideration of all of
the relevant factors.
No Single Factor
The Court concludes that cases in which a custodial parent's desire to relocate
conflicts with the desire of a non-custodial parent to maximize visitation opportunity are
too complex to be resolved by a mechanical analysis that prevents or interferes with a
simultaneous weighing and comparative analysis of all of the relevant facts and
circumstances. The Court concentrated its appreciation on both the need of the child and
the right of the non-custodial parent to have regular and meaningful contact.
Nonetheless, it also proposes that no single factor should be treated as dispositive or
be given such weight as to predetermine the outcome. Rather, each relocation request must
be considered on its own, with consideration of all the relevant facts and circumstances
and with predominant emphasis on what outcome is most likely to serve the best interests
of the child. While the rights of the parents are significant factors that must be
considered, the rights and needs of the children must be accorded the greatest weight.
The Court carefully noted that like ''... Humpty Dumpty, a family, once broken by
divorce, cannot be put back together in precisely the same way.'' The relationship between
parent and child is different after a divorce and ''... it may be unrealistic in some
cases to try to preserve the non-custodial parent's accustomed close involvement in the
children's everyday life at the expense of the custodial parent's efforts to start a new
life or to form a new family unit.''
In some cases, the interests of the child might be better served if the court grants
visitation that maximizes ''... the non-custodial parent's opportunity to maintain a
positive nurturing relationship while enabling the custodial parent ... to go forward with
his or her life.''
... in all cases, the courts should be free to consider and give appropriate weight to
all of the factors that may be relevant to the determination. These factors include, but
are certainly not limited to each parent's reasons for seeking or opposing the move, the
quality of the relationships between the child and the custodial and non-custodial
parents, the impact of the move on the quantity and quality of the child's future
contactwith the non-custodial parent, the degree to which the custodial parent's and
child's life may be enhanced economically, emotionally and educationally by the move, and
the feasibility of preserving the relationship between the non-custodial parent and child
throughsuitable visitation arrangements. In the end, it is for the court to determine,
based on all of the proof, whether it has been established by a preponderance of the
evidence that a proposed relocation would serve the child's best interests. (citations
omitted)
The Court emphasized that even where the move would leave the non-custodial parent
without what may be considered ''meaningful access,'' relocation may still be allowed by
weighing the effect of the quantitative and qualitative losses that will result against
such factors as the custodial parent's reasons for wanting to relocate and the benefits
that the child may enjoy or the harm that may ensue if the move is or is not permitted.
While economic or health reasons continue to provide a basis for permitting the
relocation, a second marriage of the custodial parent or an opportunity to improve her or
his economic situation is now also a valid reason for permitting the relocation if the
overall impact on the child would be beneficial.
The Court now suggests that the custodial spouse's remarriage or wish for a ''fresh
start'' can suffice to justify a distant move because of the value to the children that
strengthening and stabilizing the new, post-divorce family unit can have.
Transfer of Custody?
The Court of Appeals offers glimpses into the battling concerns of divorcing
parents, suggesting that where the non-custodial parent is interested in securing custody,
and a child's ties to the non-custodial parent and to the community are so strong as to
make a long-distance move undesirable, the availability of a transfer of custody, as an
alternative to forcing the custodial parent to remain ''may have a significant impact on
the outcome.''
Unsympathetic attitudes toward the plight of the non-custodial parent are voiced by the
Court however, when it offers that, ''where the custodial parent's reasons for moving are
deemed valid and sound, the court in a proper case might consider the possibility and
feasibility of a parallel move by an involved and committed non-custodial parent as an
alternative to restricting a custodial parent's mobility.''
Other factors enumerated by the Court of Appeals, which appear to have been
systematically developed with a view toward minimizing the parents' discomfort and
maximizing the child's prospects of a stable, comfortable and happy life are:
(1) the good faith of the parents in requesting or opposing the move;
(2) the child's respective attachments to the custodial and non-custodial parent;
(3) the possibility of devising a visitation schedule that will enable the
non-custodial parent to maintain a meaningful parent-child relationship;
(4) the quality of the lifestyle that the child would have if the proposed move were
permitted or denied;
(5) the negative impact, if any, from continued or exacerbated hostility between the
custodial and non-custodial parents;
(6) the effect that the move may have on any extended-family relationships; and
(7) any other facts or circumstances that have a bearing on the parties' situation.6
In Tropea the parties' 1992 divorce judgment, which incorporated their
separation agreement, gave the petitioner-mother custody of the two children and the
respondent-father was granted visitation on holidays and ''at least three * * * days of
each week.'' The parties were barred from relocating outside of Onondaga County, where
both resided, without prior judicial approval.
Petitioner sought permission to relocate to the Schenectady area because of her plans
to marry an architect who had a firm in Schenectady. She and her fiance had purchased a
home in the area and were expecting a child of their own. Petitioner stated that she was
prepared to drive the children to and from their father's Syracuse home, about 2 hours
away from Schenectady. The distance made mid-week visits during the school term
impossible. Respondent established he maintained frequent and consistent contact with his
children.
'Meaningful Access'
The JHO found that petitioner's desire to obtain a ''fresh start'' with a new
family was insufficient to justify a move that would ''significantly impact upon'' the
close and consistent relationship with his children that respondent had previously
enjoyed. The Appellate Division reversed, holding that petitioner had made the necessary
showing that the requested relocation would not deprive respondent of ''regular and
meaningful access to his children'' and that the move would be in the best interests of
the children.
The Court of Appeals found no reason to upset the Appellate Division's determinations
on these points.
In Browner the parties' 1992 Agreement, which was incorporated in and survived
their 1992 divorce judgment, gave the mother custody of the child and gave the father
liberal visitation, including midweek overnight visits and alternating weekends.
Petitioner was required to seek prior approval of the court if she intended to move more
than 35 miles from respondent's residence in Westchester.
Petitioner sought permission to relocate to Pittsfield, Mass., 130 miles from
respondent's home, because her parents were moving there and she wished to go with them.
Petitioner testified that she had tried to find work in New York but was unable to do
so and that her prospects of finding affordable housing in the Purchase area were bleak.
She located a job in Pittsfield that would give her sufficient income to rent a home. A
motivating factor was the emotional support and child care that she received from her
parents and that she expected to receive from her extended family in Pittsfield.
Petitioner was somewhat dependent on her parents for financial and moral support, and
her son had become especially close to his grandparents after the parties had separated.
The boy had a long-standing close relationship with his Pittsfield cousins. Respondent
argued that the relocation would deprive him of meaningful access to his child.
The Family Court found that respondent had been ''vigilant'' in visiting his son and
was ''sincerely interested in guiding and nurturing [the] child.'' Nonetheless, it
authorized the move, granting respondent liberal visitation rights. It noted that the move
would not deprive respondent of meaningful contact with his son and that, in light of the
psychological evidence, the move would be in the child's best interests. It stated that
the parents' separation from each other would reduce the bickering that was causing the
child difficulty and would enable the child to have the healthy peer relationships that he
needed.
The Appellate Division affirmed, stating only that ''the relocation did not deprive
[respondent] of regular and meaningful access to the child'' and, thus, petitioner was
''not required to show exceptional circumstances to justify relocation.''
Respondent's only argument in the Court of Appeals was that the Appellate Division
misapplied the Radford test to his case and that the 130-mile move from Westchester
to Pittsfield would eliminate his mid-week visitation, reduce his ability to participate
in his son's religious worship and diminish the quality of the weekend visits with his
son. The Court held that while these losses were real and far from trivial, it could not
be said that they operated to deprive respondent of a meaningful opportunity to maintain a
close relationship with his son. Thus, he was not entitled to reversal.
----------------------
Notes
(1) (1981) 52 NY2d 170, 436 NYS2d 862, 418 NE2d 377.
(2) See Freiderwitzer v. Freiderwitzer, (1982) 55 NY2d 89, 447
NYS2d 893; Daghir v. Daghir (1982), 56 NY2d 938, 439 NE2d 324, affg (82 AD2d 191); Savino
v. Savino (1985, 2d Dept.), 110 AD2d 642.
(3) 2d Dept., 1993; 190 AD2d 93.
(4) See Freed, Brandes and Weidman, ''Relocation: A Child's Dilemma,'' New
York Law Journal, Dec. 31, 1991, p.3, col. 1; Brandes and Weidman, ''The Relocation
Dilemma Revisited,'' NYLJ, Nov. 23, 1993, p.3, col. 1; Brandes and Weidman, ''When
the Custodial Parent Relocates,'' NYLJ, Feb. 28, 1995, p.3, col.1.
(5) __ NY2d __ , NYLJ, March 27, 1996, 1996 N.Y. Int. 48. March
26, 1996
(6) In a footnote the court stated that a geographical relocation
restriction agreed to by the parties and included in their separation agreement might be
an additional factor relevant to a court's ''best interests'' determination.
*********
Joel R. Brandes and Carole L. Weidman have law offices in New
York City and Garden City. They co-authored, with the late Doris Jonas Freed and Henry H.
Foster, Law and the Family New York, and co-authored Law and the Family New
York Forms, both published by Lawyers Cooperative Publishing.
