USA – NEW YORK Law and Practice Contributed by: Eleanor B. Alter, Adam John Wolff, Jenifer J. Foley and MaryJane Gurriell, Alter Wolff Foley & Stutman LLP
2.3.2 Wishes and Feelings of the Child Under New York law, a child’s expressed wishes and feelings are a relevant and potentially significant factor in relocation proceedings, but they are never legally controlling or determinative. Within the Tropea frame- work, which evaluates relocation under a totality of circumstances analysis focused on the child’s best interests, a child’s preferences are entitled to increas - ing weight with the child’s increasing age and demon - strated maturity. For younger children (generally those under 10 or 11), courts give little weight to expressed preferences, while older teenagers (ages 14-17) are given substantial weight, sometimes tipping the bal - ance of the best interests analysis. Courts have devel - oped several procedural mechanisms – including in camera interviews, attorney for the child (AFC) repre - sentation, and forensic evaluations – through which those preferences are conveyed and assessed. 2.3.3 Age/Maturity of the Child See 2.3.2 Wishes and Feelings of the Child . 2.3.4 Importance of Keeping Children Together New York courts place significant, but not absolute, weight on keeping siblings together when evaluat - ing a parent’s request to relocate with a child. Sibling unity is one of those recognised factors, and New York courts have consistently held that the law strongly favours the development and encouragement of sib - ling bonds. Courts are required to consider the impact of a proposed relocation on sibling relationships and the feasibility of preserving those bonds through visi - tation. However, the preference for keeping siblings together is not an absolute rule – it can be overcome when the totality of the best interests analysis sup - ports relocation or when a different custody arrange - ment better serves the child’s overall welfare. 2.3.5 Loss of Contact Loss of or reduction in parental contact is often the central part of a relocation conflict, and New York courts have routinely recognised that this factor, along with regular access to the non-moving parent’s extended family, is a paramount concern. Courts routinely deny relocation requests where the mov - ing party does not demonstrate that the benefits of the relocation outweigh the harm to the relationship between the child and the non-relocating parent. A
moving parent should acknowledge the child’s need for the non-custodial parent to develop a meaningful, nurturing relationship with the child, and that parental access would ideally be frequent and regular. However, the Court of Appeals in Tropea also acknowl - edged that there are circumstances where less fre - quent but more extended visits over summers and school vacations could be equally conducive, or per - haps even more conducive, to the maintenance of a close parent-child relationship, as such extended vis - its give the parties the opportunity to interact in a nor - malised domestic setting. This recognition means that the loss of regular contact is not automatically fatal to a relocation petition – the question is whether the relationship can be meaningfully preserved through alternative arrangements. 2.3.6 Which Reasons for Relocation Are Viewed Most Favourably? Courts are most receptive to: • detailed reasons for and demonstrable benefits of the proposed relocation; • the credibility and good faith of the moving parent; and • the moving parent’s clearly articulated, reasonable plans to mitigate any negative impact of the move on the child’s relationship with the non-moving parent. 2.3.7 Grounds for Opposition to Relocation The single most important factor in opposing a relo - cation is usually demonstrating that the move will substantially diminish the quantity and quality of the child’s relationship with the non-relocating parent. Tro- pea itself identified this as the central concern, stat - ing that the impact of the move on the relationship between the child and the noncustodial parent will remain a central concern, and that even where the move would leave the noncustodial parent with what may be considered meaningful access, there is still a need to weigh the effect of the quantitative and quali - tative losses that naturally will result. A non-moving parent who has actively exercised parenting time and maintained a close, nurturing relationship with the child stands in the strongest position to oppose relo - cation.
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