Relocation Clauses and Child Custody Matters

Family law issues can be complex for many different reasons. When attorney Darren Shapiro works with his clients throughout Long Island and New York, he finds that many of them experience issues with a range of things. Some feel that it's difficult to decide what will happen to the family home, while others have a hard time with equitable distribution. While any part of a divorce can be difficult, a commonly problematic area of a divorce or separated parents, involves child custody, visitation and parenting rights. Child custody agreements, to be legally binding, must always be approved by the courts based on a consideration of the "best interests of that child”. This means that even if modifying an agreement is a good idea for the child, absent an agreement about the modification, the courts would need to see that circumstances had significantly changed before they would consider changing the last order.

When working with clients on issues of family law regarding child custody agreements and parenting time, Darren Shapiro often draws attention to the difficulty of making a decision that's correct for a child. The Nassau County, Suffolk County, Long Island, Queens and New York courts will not disrupt the life of a child by altering their custody arrangement unless they see a good reason to do so. In the past, it used to be that if people agreed in advance that a parent would have the right to relocate as part of a written agreement approved the court, this would be accepted. However, there is authority now that stands for the proposition that the court cannot always automatically say what's in the best interests of a child based on an agreement anymore, after the passage of time, without hearing the full case.

In a recent court heard by the second department of the Appellate division (which covers Nassau County, Suffolk County, Queens and other local areas) examined the complex nature of child custody agreements. The case, Jaimes vs Gverko addressed the appeal of a father, who asked the custody court to change a previous order, which allowed the mother to move within a certain mileage. The lower court originally granted the mother's motion to dismiss the father's petition to modify their previous custody order without a hearing. This modification would asked to stop the mother from relocating to Connecticut, from her city in New York, with the children. It also asked for an attorney to be given to the children.

During March 2014, the couples in the case had agreed on a custody stipulation with joint custody, and the mother receiving the residential custodian role. The agreement that had been signed into place had a relocation clause that allowed the mother to move within 55 miles of her home. However, in 2017, the mother informed the father she would be moving, and the father filed a petition to modify the stipulation. He believed that there had been a change of circumstances that would prevent the relocation from being within the child's best interests. Sometimes, a passage of time can mean that the desire to move from one party would require the reconsideration of the court. A best interests analysis was necessary.

As Darren Shapiro notes, that the mother moved to dismiss the petition against her, using the previous agreement as evidence that she should be allowed to move. The family court granted the mother's motion. However, following this, the Appellate court suggested that the family court should not have granted the mother's request, according to CPLR 3211 (1) (1). The court said that no agreement made by parties in the past can bind the court to disposition, unless the court has already weighed all the factors present at that time and deemed something to be in the child's best interests.

Although both of the parties involved in the case outlined above had agreed that the mother would be able to move to a new home within 55 miles of her original residence, the agreement couldn't be seen as controlling. Instead, this court ruled that courts can only use agreements about child custody as a factor that can be addressed alongside a range of other issues that need to be considered during a best interests hearing. The court officially decided that it was the duty of the trial court to determine the best interests of the children in the case. Because enough had changed in the time it had taken for the mother to make her move outside of her original residence, a hearing was required.

As many parents do with the help of a family law attorney, like Darren Shapiro, in this specific case, the father made an offering of evidence to the courts that suggested the move proposed by the mother might not be in the children's best interests. In cases where the facts that are essential to understanding the best interests of a child are in dispute, and a court believes that a substantial change of circumstances has occurred since the last child custody order, a hearing or trial is necessary. While relocation clauses can still be useful in a negotiated child custody and divorce agreement, they aren't always controlling. This is something that Mr. Shapiro outlines to his clients.

To discuss child custody agreements and alterations further, feel free to contact Mr. Darren Shapiro today to arrange your initial consultation period of up to thirty minutes for free. Contact us over the phone at (516) 333-6555 or feel free to use our contact form.