USA Trends and Developments Contributed by: Valentina Shaknes and Grace Chamoun Taranto, Krauss Shaknes Tallentire & Messeri LLP
months, and on holidays as set forth by the court – but allowed the children to remain with the mother in Texas. The father appealed. The appellate court affirmed the district court’s denial of the father’s request for sole custody of the children and approved the mother’s relocation to Texas. How - ever, the appellate court reversed the award of joint custody and the award of unsupervised visitation by the father and rendered judgment awarding sole cus - tody of children to the mother, with all visitation of the children by the father to be supervised. Notably, the appellate court determined that the mother’s reloca - tion was made in good faith and that there was no evidence that the mother’s motivation for moving to Texas was frivolous or intended to limit the father’s access to the children. Safety first These cases are not outliers. They reflect a growing recognition that survival and the search for safety can never be a custody violation. It is still incumbent on courts to properly recognise and consider allegations of domestic violence. Although the courts may ini - tially struggle with balancing a person’s right to parent one’s children against protecting those children (and their parents) from domestic violence, the task really should not be that complicated. Once appropriate legislature is in place, the courts should implement that legislation in the way that affords the victims the greatest protection.
Parental relocation without consent is rarely a manipu - lative act of interference; more often than not, it is an act of desperation and a bid for safety. The law must be capable of discerning between the two. It must evolve to honour the difference between a parent who runs away from responsibility and one who runs to protect their child. An additional consideration that must be present in all cases involving domestic violence is the cost of delay. For survivors, waiting for court approval before fleeing can mean trading safety for process. In Mat- ter of Ramon R v Carmen L , 188 AD3d 545 (1st Dep’t 2020), a New York mother and her children escaped domestic violence and lived in shelters for months while awaiting judicial authorisation to relocate. Only after enduring that prolonged period did the court finally approve her move to Colorado. This is not due process; it is a prolonged exposure to fear, danger and harm. When lives are at risk, procedure must never become punishment.
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