The divorce is finally over.
No more fighting over who gets to keep the home and other real estate. Those leather couches, and the expensive art hanging on the walls of your summer home. A drop in the bucket compared to the company that both of you slaved over to build or the family pet that made your kids so happy. The whole process almost landed you in Bankruptcy Court. But even now, all that looks small compared to the most important issue of all: child custody. But hey—all of this is over. Resolved. Now you can breathe a sigh of relief. You’ve probably been wondering about your future – without your x. Yes, being single again definitely has its benefits. Maybe you’re going out more, enjoying life, and watching your diet. It’s those little things you haven’t enjoyed in a long time that suddenly make life worth living–again.
Most people who choose divorce and feel this kind of relief, are –in the end--happy with the decision they made. What you both needed was peace. And now you have it. And happy to have a new chance to find that RIGHT special someone to build a life together. But that’s not where the story ends. You might wake up one day, and feel like changing your life completely. Maybe you decide that your financial security and personal happiness are somewhere, anywhere other than where you are right here and now. Somewhere outside of New York you may be thinking. Maybe a better job is waiting in another state. Maybe you have health reasons or better yet, a new relationship. A voice deep in your heart keeps telling you to move. So maybe you do need a new start: to realize your dreams, to focus on your career, and to build a new home. You have every right to want to leave the old memories behind. But how can you do that when you see the same places you once shared? And with someone who may have broken your heart. So, a new opportunity and a new chance to build a new life in a new state with new friends sounds great. Even Newsweek lists the ten best cities to go live in. You might be thinking that you’ll go to the web looking for info sites detailing how to build a healthy home. Now, maybe you decided your destiny is to live with the stars under the shining lights of Hollywood. And well, hey at least the weather is nicer, the water is clean and the sand is soft. Right? But what about your fantastic plans to leave the country? If you plan on taking the kids anywhere out of the country or even out of the state, here’s what you need to consider.
Planning is everything.
First, leaving with your kids without permission from your x spouse, is against the law. In fact, it’s a serious felony called “Parental Kidnapping”. Most attorneys know very well that the FBI works in cooperation with local law enforcement agencies to ensure that parental kidnappers are brought to justice. They are arrested. They are prosecuted. And they are sent to prison. Unfortunately, some parents think more with their heart than their minds. The result? A tragedy for everyone. Parents--no matter how good their intentions-- who get arrested for kidnapping their own children, have to hire a criminal defense lawyer. But wait--that’s money that could be better spent improving your life. Not exactly what you had in mind. So how do you take your children legally without hassles and headaches?
What does the law say?
First, if possible, get permission. If asked nicely, maybe your x-spouse would agree to give you sole custody of your child and eliminate the need to proceed to Court. If you obtain sole custody this way, you do not need to read on because you are almost home. However, if that is not possible then your former spouse may agree on a joint custody agreement with a passport waiver clause. Such a clause would allow you to apply for a passport on behalf of your child without the need to consult with your former spouse, and thereby giving you the option of going abroad on vacation, with your child - in peace. However, if your mission is to live with you child permanently out of state, the custody agreement needs to say that-- exactly and clearly. In New York, the law says that barring parental permission, a spouse or a custodial parent may take the children out of the state by Court Order. Usually, when there’s been a difficult relationship between both x- spouses, one spouse will not permit the other to take the kids out of state, much less the country. In these situations, the former spouse may try to use your desire to move as an opportunity to get money from you. The usual offer is that they’ll let you leave the state, if you agree to drop all child support proceedings or any existing child support court orders. If that happens to you, the most logical step is to go to Court. Normally, a Family Court Judge decides whether or not the relocation out of state with the child would be allowed.
It’s your choice—use your voice.
Understanding the practical reasons behind the legal challenges that you’ll face, are easier to accept when you fully appreciate the intentions behind them. The way the law sees it, in you taking your child outside of the state of New York, you are effectively denying your x-spouse their visitation rights. In turn, this basically deprives your former spouse of a meaningful opportunity to maintain a close relationship with your kids. Now you may say that your x-spouse is welcome to visit anytime, or that you’ll send the child back to New York anytime that your x wants. And in order to do this you may ultimately be prepared to drive the kids cross state lines, both to and from your former spouse’s home (like taking a cross-country road trip every weekend). Maybe the fact that your move would make it much more difficult for your former spouse to exercise their visitation rights does not entirely dampen your desire for geographical relocation. However, you should understand that a Court must seriously consider the well being of the child first and foremost. Specifically, they consider the following seven issues:
1. Whether the move would be in the child's best interest.
2. Whether it is feasible for your former spouse to make a similar move to the same state.
3. Whether your move involves an economic hardship or necessity. (e.g. a job offer).
4. Whether your move involves a new marriage to someone who lives in the state where you’re moving.
5. Whether you’re moving for health and medical reasons.
6. Whether your move will negatively impact the relationship between the child and your x.
7. Whether your former spouse has a good faith reason for opposing the move.
There’s one part of this that really isn’t understood by most parents, is the “Best Interest Test”. This test is the way the Courts try to understand the effect that the move may have on any of your family relationships. In determining what the child needs most, the Courts generally look at many things. For example, whether your move will hurt your child's ties to your former spouse and the community. These reasons are generally looked at by the Court when those ties are very strong. So if your child has a hard time getting along with your former spouse (and the blame is not attributed to you) then those possibilities are not weighed as heavily.
If your parents and your former spouse’s parents are also in New York and you’re planning on moving to New Jersey, then it’s also likely that your children will not see their grandparents as much as they would have in the past. The quality of the parental relationship usually suffers as a result of moving. The same is true of your child’s relationship with their grandparents. If your child has a hard time getting along with their grandparents (and the Court decides is not your fault) then you have a better case for getting Court approval for the move. However, most judges usually have enough experience to know when the former spouses are trying to hurt each other by proposing or opposing a residential move. Generally, although a Court may deny you of the right to move with the kids, most “good faith requests” are seldom denied.
In the end, it all works out.
Ultimately, it’s the Courts who determine, with the help of your lawyer, (and based on all of the proof you have) whether you have proven that the welfare of your child will not be hurt by a move.
Odalis M. Encarnacion is a New York City Family Lawyer in private practice. For more information visit him on the web: http://www.encarnacionlaw.com