September 2012 Archives

September 17, 2012

The Role of a Child's Wishes When a Parent Wants to Relocate

Clients often ask what role a child's wishes should (or do) play when one parent is considering moving them to a new location, away from the other parent. A New York Court has recently issued a thoughtful decision regarding this issue.

New York law tells us that when considering a custodial parent's request to relocate, several factors need to be examined to determine what is in the child's best interests. In addition to the child's wishes, other important factors to consider include the reason that the parent is seeking to move, how the move would impact the quality and quantity of the child's contact with the other parent, and the potential economic, educational and emotional enhancement of the child if the move were to take place.

In Byron v. Davis , the Court considered the request of a mother who had primary residential custody of her children, to move them from Rochester, NY to Washington, DC so that she could accept a position as an associate dean at a university. The job offered substantial career advancement and doubled the Mother's salary. The Father objected to the relocation on the basis that it would substantially interfere with his relationship with his 11 and 14 year-old sons. The Court found that both parents were loving and caring parents and both offered valid reasons for their positions regarding whether it was in the children's best interests to stay in Rochester or move to Washington DC. For the Court, the decision came down to the desires of the children.

In rendering its decision, The Court examined various factors to determine whether the relocation would be in the children's best interests:

• Physical and emotional state of the children

The court noted that the parents described their sons to be highly intelligent, well-rounded, and in excellent health. They played sports and were involved in other activities as well. There was no evidence of any impairment of their judgment.

• Parental influence

Both parents were deemed to be stable and neither of them attempted to improperly influence the children in their decision or promote their own agendas.

• Constancy of children's preference

The children "remained firm" in their desire to stay in Rochester. Additionally, they were aware of the standard of living they would have if they stayed with their father who earned a much smaller income than their mother's future income.

After examining all of the factors necessary to determine the children's best interests in this case, the Court decided that the children's valid reasons for wanting to stay in Rochester with their father trumped their mother's desire to move them to DC.