When couples with children divorce, generally one parent will become the residential parent with whom the children primarily live. The non-residential parent will generally have every other weekend and two or more days after school for dinners with the children, plus parenting time on holidays, school breaks, birthdays, and during the summers.
But what if the residential parent wants to relocate with the children because the parent has taken a better paying job? In one case, a mother was enjoined from moving because of the substantial increase in time it would take the father to have parenting time with his children. Whereas it used to take him 5 minutes to pick up and bring the children back to the mother’s residence, it now took 50 minutes. Each way.
A parent seeking to relocate with a child bears the burden of establishing by a preponderance of the evidence that the proposed move would be in the child’s best interests. Factors considered by the courts include, but are not limited to, each parent’s reasons for seeking or opposing the move, the quality of the relationships between the child and the residential and nonresidential parents, the impact of the move on the quantity and quality of the child’s future contact with the nonresidential parent, the degree to which the residential parent and child’s life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the nonresidential parent and child through suitable parenting time arrangements.
Commuting time that impairs the nonresidential parent’s quantity and quality of time with the children, can affect a parent’s request to relocate with children as in the below two cases:
- A residential parent sought to relocate from one New York City borough to another and was denied because the father’s parenting time would have him and the children traveling between the two locations during morning and evening rush hours in heavy traffic. The Court found that such “onerous” travel arrangements would result in the children not wanting to spend much time with their father, even though the physical distance was only about 20 miles.
- Another residential parent was denied a move from one upstate County to another—a distance of only 17 miles—because the Court found the nonresidential parent, due to work demands and the rush hour commute to pick up and drop off the children, would substantially impair that parent’s weekday contact with the children.
As these cases show, traffic can negatively impact the quantity and quality of contact between a nonresidential parent and his or her children. However, in another case the Court granted the petition to relocate even though the residential parent sought to relocate approximately one-hundred miles away. In this case, the petition to relocate was granted because the nonresidential parent worked for a family-owned company, had a flexible work schedule, and it was the child’s desire to move with the residential parent.
Marina Martielli is an attorney in Twomey Latham’s Divorce & Family Law and Civil Litigation departments. This publication is for general information purposes only and does not constitute legal advice. The author of this article is available to discuss its contents at your convenience.
