USA Law and Practice Contributed by: Valentina Shaknes, Jordan Messeri, Malissa Osei and Grace Chamoun Taranto, Krauss Shaknes Tallentire & Messeri LLP
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 a different country, the same standard applies, which is generally the best interests of the child. The distance of the pro - posed relocation, however, is a major factor as it will determine the extent to which the proposed relocation will adversely affect the non-applicant’s access to the child. The less the effect on the other parent’s relation - ship with the child that a relocation has, the more likely the court will be to allow it. By way of example, if the
proposed relocation is to “the other side of town” (and this will minimally affect the non-applicant’s ability to spend time with the child), a court will generally allow the relocation. If, however, the proposed relocation is of significant distance – such as to a different part of the state or to a different country – to the extent that the relocation significantly affects the non-applicant’s access or parenting time with the child, then the court will be less likely to allow the relocation, subject to its decision as to whether the proposed relocation is in the child’s best interests following consideration of the relevant facts and circumstances. In the USA, it is a federal criminal offence – punishable by a fine or up to three years in prison – to remove a child under the age of 16 from the USA with the intent to obstruct the lawful exercise of parental rights. The term “parental rights” refers to the right of physical custody of a child (including joint and sole custody) regardless of whether such rights have been deter - mined by a court order, have been established by a binding agreement between the parents or arise auto - matically by operation of law. 3. Child Abduction 3.1 Legality In addition to this federal law, all states in the USA have enacted their own laws making it a crime to remove the child from the state without a court order or without the permission of the other parent and with the intention of defeating such parent’s custo - dial rights. In New York, for example, it is “custodial interference in the first degree” for a parent (or another relative) to take a child under the age of 16 with the intent to keep the child away permanently or for a protracted period of time. Custodial interference in the first degree is a Class E felony punishable by up to four years in prison. Similarly, in California, any “person” who takes a child and “maliciously deprives a lawful custodia[n] of a right to custody… or visitation” may be prosecuted for “deprivation of custody of a child or right to visi - tation” (Section 278.5 of the California Penal Code). Depending on the degree, deprivation of custody is
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