A client recently asked me: what happens when the non-custodial parent wishes to relocate outside of New York City greater area? She was the custodial parent in this case.
Unlike with a custodial parent wishing to relocate, the law does not require the non-custodial parent to seek permission by the court, absent a separation agreement by the parties saying otherwise. Thus, judges do not really have jurisdiction over the parents’ right to move, only over the relocation of the children. The rationale behind this is that a custody and visitation order doesn’t require the non-custodial parent to visit with the child; it allows the parent to visit. That being said, visitation is a joint right of the non-custodial parent and child. See Weiss v. Weiss, 436 N.Y.S.2d 862 (N.Y. 1981)
Oftentimes the custodial parent is better off if the non-custodial parent stays close for fear that the child will have to travel far distances to visit the non-custodial parent. This can be terrifying for a custodial parent who has never had his/her children travel and/or if the custodial parent has very young children.
By petitioning the court for a modification of the visitation order, the custodial parent could set conditions for the visitation. For starters, it would be a good idea to request that the visitation between the relocated non-custodial parent and the child take place in the child’s home-town (or close by). Here are some other contingencies that would be wise to add: (1) that the child not be taken out of state without the mother’s consent; (2) not travel on an airplane, train, or bus without the mother’s consent; (3) not to travel on an airplane, bus, or train without the mother or the father accompanying the child; and (4) that transportation costs to be provided for by the father. These are just some examples, but a family law attorney experienced in child custody, and particularly relocation cases, can develop more and tailor them to your particular situation given the distance and age of your child(ren).