USA Law and Practice Contributed by: Valentina Shaknes, Jordan Messeri, Malissa Osei and Grace Chamoun Taranto, Krauss Shaknes Tallentire & Messeri LLP
1.7 Adoption See 1.4 Requirements for Non-Genetic Parents .
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: • 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. 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. Relocation 2.1 Whose Consent Is Required for Relocation?
When one parent wishes to relocate a child perma - nently to another country, the relocating parent gener - ally needs the consent of the other parent and/or any other individual who is a legal guardian of the child. 2.2 Relocation Without Full Consent If a parent wishes to move a child of the family per - manently out of the family home to a new country and does not have the written consent of the non-relo - cating parent or legal guardian, the relocating parent may still seek to relocate by applying to a court with jurisdiction over the child. Under the Uniform Child- Custody Jurisdiction and Enforcement Act (UCCJEA), the court with jurisdiction over the child is the court in the state where the child has resided for a period of six months or more. The court may grant permission for the relocation if it determines that relocation is in the child’s best interests. 2.3 Application to a State Authority for Permission to Relocate a Child 2.3.1 Factors Determining an Application for Relocation When a relocating parent cannot obtain the consent of the non-relocating parent or guardian, an application must be made to the relevant state court for permis - sion to relocate. Courts across different states con - sider various factors when evaluating such requests – all anchored by the paramount concern: the best interests of the child. In evaluating the request, the court typically considers the following: • the relocating parent’s stated reasons for wanting to relocate; • whether the move would significantly enhance the child’s educational or financial circumstances to the extent that it outweighs the potential disruption
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