One of the toughest situations a family can face during or after a divorce involves one parent wanting or needing to move far away from the other. Often, the reason for considering relocation is financial — living in two homes is more costly than living in and maintaining one. For most couples, divorce usually means a financial hit.
Making a new start elsewhere in the hopes of providing the basics that a family needs can make sense.
For sure, non-monetary reasons are frequently factors as well. One spouse may return to live where she grew up in order to have the emotional support of her parents, other relatives, and friends.
Whatever the underlying reasons, relocation involves hard questions. Given the school schedule, how will the child maintain a strong and healthy relationship with both mom and dad? How will the travel expenses (flights, hotel accommodations, etc.) be handled?
When relocation is an issue, the “remaining” parent may feel abandoned, and perhaps betrayed. The parent planning a move may feel that he has no choice, and that he can’t continue living in the same geographic area.
Rarely are there easy answers, and perhaps that is a reason why different judges have issued inconsistent rulings from one court to the next. It is most challenging to predict whether a judge will give more weight to the ongoing relationship between the parent who is staying and the child, or to the new opportunities of the spouse wanting to move.
Still, parents can influence the odds one way or the other. Let’s take the recent case, Matter of Davis v. Ogden, August 2013, Appellate Division, Second Department.
In my view, this was an “easy case” in that the remaining parent, in this instance the father, apparently did very little to help himself prove to the judge that the children should stay with him. Still, there are clear lessons to be learned.
The mother argued that 1) by moving from New York to Florida, she would be living in a place where the cost of living is lower, and where the quality of life would be greatly enhanced; 2) she was struggling financially, and so providing the high quality of life that children deserve was difficult if not impossible in New York; and, 3) her mother and other relatives in Florida could give her and the two children the support they need.
The mother made a strong case for relocation, and the father’s own behavior only bolstered her case. He had spent little time with the children — only 30 hours during the preceding year. He didn’t have much phone contact with them, and wasn’t there for appointments with doctors or for extracurricular activities. He also wasn’t in contact with the kids’ teachers.
The judge might have ruled differently if the father had been very involved with the children, giving his time and attention to them in every possible way. Judges make their decisions based on “the best interests of the child” (a vague concept that leaves judges with a great deal of discretion in weighing various factors).
Under these circumstances, does a higher standard of living and help from family outweigh the relationship of the children with their father? What if his parents are a big part of the children’s lives? What if the father is willing and able to financially assist so that the kids’ standard of living can be raised right where they are?
Again, a very difficult matter to decide.
A parent wishing to relocate with a child has the burden of establishing that the contemplated move would be in the child’s best interest. In New York, the burden (a preponderance of the evidence) may not be very stringent. When the remaining parent is largely uninvolved with the children, it is even easier to reach.
New York City and Long Island-based divorce mediator and collaborative divorce lawyer Lee Chabin helps clients end their relationships respectfully and without going to court. Contact him at lee_chabin@lc-mediate.com, (718) 229–6149, or go to lc-mediate.com/. Follow him on Facebook at www.facebook.com/lchabin.
Disclaimer: All material in this column is for informational purposes only and does not constitute legal advice.
