USA Law and Practice Contributed by: Valentina Shaknes, Jordan Messeri, Malissa Osei and Grace Chamoun Taranto, Krauss Shaknes Tallentire & Messeri LLP
2.3.2 Wishes and Feelings of the Child The courts will generally consider the wishes and feel - ings of a child as an important factor. However, this is not dispositive and is just one of many factors to be considered. 2.3.3 Age/Maturity of the Child In New York, there is no set age for a child’s expressed wishes and feelings to be the determining factor. The court retains final say over such matters until a child reaches 18 but may allow a child to decide under certain circumstances, taking into account the child’s age, intelligence, and maturity level. The older and more mature the child is, the more weight will be given to the child’s wishes and feelings. As a practical mat - ter, a typical teenage child will be able to determine their own outcome. 2.3.4 Importance of Keeping Children Together The courts generally favour keeping children together. However, there are exceptions, particularly where chil - dren are deemed old enough to decide their prefer - ence regarding with which parent to reside. 2.3.5 Loss of Contact Significant weight is placed on the potential loss of contact between the children and the left-behind parent. The more involved the left-behind parent is in the children’s lives, and the more parenting time they spend with the children, the less likely it is that relo - cation will be permitted. Conversely, if a left-behind parent rarely sees the children or is not involved in their day-to-day lives, the more likely it is that reloca - tion will be permitted. The court may also consider the extent to which lost contact can be mitigated, such as by granting the left-behind parent additional access during holidays, vacations, and the summer break from school. 2.3.6 Which Reasons for Relocation Are Viewed Most Favourably? Applications for relocation are very fact-specific and, in general, no single reason for relocation would be viewed most favourably. Some reasons that would engender sympathy by a court, however, would include where relocation is alleged to be necessary to: • support the child financially;
• whether the move would significantly enhance the child’s educational or financial circumstances to the extent that it outweighs the potential disruption to the child’s relationship with the non-relocating parent or guardian; • the child’s age, relationships with any siblings who are not relocating, and overall family structure and support in both locations; and • each parent’s capability to meet the child’s overall needs, including the ability to foster and facilitate the child’s relationship with the other parent or legal guardian. By way of example, in New York, the relocating parent must make a prima facie showing in the application to the court. New York courts often refer to the precedent set by Tropea v Tropea , 87 NY 2d 727, 665 NE 2d 145 (1996) and its progeny to evaluate the specific circum - stances of each case. If the court determines that a prima facie case has been established, a hearing will be held wherein both parties can present evidence supporting their positions on the proposed relocation. Depending on the child’s age, the court will appoint an attorney to advocate for the child. Additionally, the presiding judge may arrange to speak with the child in camera to determine the child’s preferences. After considering all the evidence, including the child’s expressed wishes, the court will issue a decision. In Massachusetts, if the party seeking relocation is the sole physical custodian of the children, the judge must consider the request under a two-prong test: • first, whether there is a good reason for the move – ie, a real advantage; and • second, whether the move would be in the best interests of the children. Key precedents on relocation from other states include: • Tropea v Tropea , 87 NY 2d 727, 665 NE 2d 145 (1996) – New York; • Altomare v Altomare , 77 Mass App Ct 601, 933 NE 2d 170 (2010) – Massachusetts; and • in re Marriage of Burgess , 13 Cal 4th 25, 913 P 2d 473 (1996) – California.
162 CHAMBERS.COM
Powered by FlippingBook