USA Law and Practice Contributed by: Valentina Shaknes, Jordan Messeri, Malissa Osei and Grace Chamoun Taranto, Krauss Shaknes Tallentire & Messeri LLP
• improve the child’s educational opportunities – for example, where the child has special educational needs that are not adequately addressed by the child’s current school district; and • increase the parent’s and child’s access to emo - tional and physical support systems – for example, by moving closer to family members. 2.3.7 Grounds for Opposition to Relocation There are no specific grounds for opposing reloca - tion. If a parent’s custodial rights would be adversely affected by relocation, they can set forth various rea - sons for opposition, with a focus on the child’s best interests. Generally, courts are most sympathetic to opposition based on the decrease of frequent and meaningful access between the non-applicant and the child as a result of relocation, and would consider the degree to which such a decrease would negatively impact the child and/or whether suitable alternative arrangements could be made to reduce the negative impact. The more significant access or parenting time that the non-applicant spends with the child, and the more involved the non-applicant is in the child’s life, the more likely a court would find that relocation is not in the child’s best interests – although no factor alone is dispositive. 2.3.8 Costs of an Application for Relocation The costs of an application for relocation will vary greatly depending on the facts and circumstances. Court fees for filing an application are generally not prohibitive. On the other hand, representation by com - petent counsel can cost tens of thousands of dollars or more and counsel will generally charge fees pursu - ant to an hourly billable rate. Additionally, a litigant may need to hire an expert witness or witnesses to file report(s) with the court and testify with regard to any number of issues. Each expert witness will cost several thousand dollars and cause the other party to hire an expert witness to provide a different opinion. By way of example, an application based on better educational opportuni - ties for the child would likely necessitate an expert in education to testify as to the educational benefits of the relocation, and the opposition would need an expert to testify to an opposing viewpoint.
A worthwhile consideration in many jurisdictions is that an application for relocation is considered a custody modification proceeding. In New York, for example, a court has the discretion to award the less- monied party counsel and expert fees to be paid by the more-monied party pursuant to Section 237 (b) of the Domestic Relations Law and/or Section 651 of the Family Court Act. Indeed, in New York there is a rebuttable statutory presumption that fees be award - ed to the less-monied party, subject to the discretion of the court based on consideration of the facts and circumstances. 2.3.9 Time Taken by an Application for Relocation Generally, there is no set time for relocation proceed - ings – although courts will generally prioritise reloca - tion and other custody-related matters for adjudica - tion, so as not to leave children and their parents or caretakers in limbo. The duration of proceedings will depend on many factors, including the witnesses and evidence required, and the schedule and availability of the court. 2.3.10 Primary Caregivers Versus Left-Behind Parents No presumption exists in favour of a primary parent or caregiver or the left-behind parent when reloca - tion applications are considered. The best interests of the child are always the paramount consideration and are determined by weighing the various facts and cir - cumstances presented that are relevant to the child’s welfare, including: • the reasons for the proposed relocation; and • the effects that the relocation would have on the child’s relationship with the left-behind parent. The weight afforded each factor will depend on the specific facts and circumstances of each case, as – ultimately – will the court’s decision. 2.4 Relocation Within a Jurisdiction Whether a proposed relocation is within the same area, to a different part of the state, or to different country, the same standard applies, which is gener - ally the best interests of the child. The distance of the proposed relocation, however, is a major factor as it will determine the extent to which the proposed relo -
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