USA Law and Practice Contributed by: Valentina Shaknes, Jordan Messeri, Malissa Osei and Grace Chamoun Taranto, Krauss Shaknes Tallentire & Messeri LLP
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 with which parent they wish 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 reloca - tion will be permitted. Conversely, if a left-behind par - ent rarely sees the children or is not involved in their day-to-day lives, it is more likely that relocation 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 dur - ing 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 from a court, however, would include relocation being alleged to be necessary to: • support the child financially; • 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 a reduction in frequent and meaningful access between the non-applicant and the child as a result of relocation, and will 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 that the non- applicant has, or parenting time that they spend 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-
150 CHILD RELOCATION 2026
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