Appellate Division of the Supreme Court of New York, Fourth Department · 1995 · Family Law
212 A.D.2d 1050 (1995)
Updated
Family Lawrelocationcustodyvisitationbest interests of the childrenregular and meaningful accessmodification of visitation
Facts
The parties divorced after entering a separation agreement that gave petitioner custody of their two children and gave respondent visitation rights. The agreement also provided that neither party could relocate outside Onondaga County without court approval. Petitioner sought permission to move with the children from Syracuse to Schenectady, while respondent sought a change of custody. Petitioner proposed a visitation schedule with frequent and extended visitation, offered to transport the children, and expressed willingness to ensure respondent's regular and frequent contact with them.
Issue
Whether the custodial parent should have been granted permission to relocate with the children from Syracuse to Schenectady despite the separation agreement's relocation restriction. Specifically, the question was whether the move would deprive respondent of regular and meaningful access and whether relocation was in the children's best interests.
Rule
A relocation petition should be granted when the custodial parent establishes that the move will not deprive the noncustodial parent of regular and meaningful access to the children and that permitting the relocation is in the best interests of the children. Where relocation is permitted, prior visitation arrangements may be vacated and the matter remitted to fix an appropriate visitation schedule.
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One of 10 multiple-choice questions for this case. Pick an answer to see why.
Under a divorce judgment in Rochester, Nina Calder has primary physical custody of her two children, and Omar Velez has visitation every other weekend. Their incorporated agreement says neither parent may move outside Monroe County without court approval. Nina seeks permission to move with the children to Albany for a stable housing arrangement with extended family, proposes alternating long weekends, most of the summer, and school-break visits for Omar, and offers to drive the children both ways.
How should a court rule under the governing doctrine?
Explanation. The controlling rule is that relocation may be permitted when the custodial parent establishes both that the move will not deprive the noncustodial parent of regular and meaningful access and that the move is in the children’s best interests. A prior restriction requiring court approval does not itself bar the move. Here, Nina’s proposed frequent and extended visitation, together with transportation, supports a finding that access can remain regular and meaningful if the move also serves the children’s best interests. (Derived from Tropea v. Tropea (1995).)