“For every thing you have missed, you have gained something else; and for every thing you gain, you lose something” – Ralph Waldo Emerson
Parental relocation post-separation or post-divorce often creates unprecedented challenges for the parent who wants to move, the parent who stays behind, and especially for the children. Most frequently, a dispute arises when the parent with whom the children primarily reside, moves from the residence where they are currently located and far away from “the frequently visiting and involved” parent. For example, if the children’s primary residence is with the mother and the father sees them both during the week and on weekends, what happens if the mother has to move? If that move is far away, the children and the father will be unable to see each other during the week, making it more difficult to maintain a meaningful relationship. If the move is so far away that regular weekend parenting time with the father becomes impractical, then the continuity of the relationship with the father is even in greater danger.
To handle this problem, a relocation clause, also known as a radius clause, is commonly inserted in Separation and Settlement Agreements. In general, such a provision describes the process of how the parties would go about agreeing on this issue and possible limits on the move placed on the primary residential parent, if the other parent does not consent. The movement radius may be described as a distance in miles, as a school district or as a geographical location (such as “The New York Tri-State Area”).
If this clause is not inserted then the default position is that the residential parent can’t move so far away that it would interfere with the other parent’s regularly scheduled parenting time. If the parties are divorced and their Settlement Agreement and/or Judgment does not contain language addressing relocation, the non-custodial parent can go to court and prevent the primary residential parent from moving if that move interferes with his or her ability to continue regularly scheduled parenting time. Often, it is a good idea for the parent who wants to move and can’t obtain the other’s consent by discussion or through mediation to go to court first and ask for a court order allowing the move to take place.
When the court looks at whether or not the mother, for example, should be allowed to move, let’s say to California, they consider a variety of factors. However, the primary factor is what is in the best interest of the children. The mother may present evidence that wherever she is moving would provide a better environment for the children. She may also present evidence that the move is necessary for her due to a job loss and the only job opportunity is in another state, or she has remarried and depends on her new husband’s source of income. The court has to take that information and decide if the benefits of moving to a better school district, better environment, better job, etc. are strong enough to outweigh the general benefit to that the children derive by having an ongoing relationship with the non-residential parent. Will the fact that the parent and children are not going to see each other during the week or on weekends, or only see each other during school breaks or vacations, be detrimental to the children?
This is a very tough issue for the residential parent who wishes to move, and the non-residential parent who worries about losing meaningful contact with the children. Usually these cases come up as several years after the parties’ divorce. In New York, they can be filed in Supreme Courts or in Family Courts. When a relocation case is fully litigated, it takes a very long time and neither spouse really knows the way the judge is going to come out on the issue because a lot of the benefit-detriment analysis is extremely subjective.
When the parties first separate, mediation presents a very good opportunity to explore all possible scenarios which you usually don’t get to do in a court room. Whether it is a judgment of divorce or whether there is a settlement agreement, quite often the issue of future relocation of the residential parent doesn’t come up and is only dealt with when it is imminent which can be several years after the divorce judgment. In mediation, the parties can think about what could happen if the father moves away for a job or if the mother moves away due to remarriage or a nicer neighborhood. How far is acceptable to maintain the current parenting schedules? Would the parties consent to a more distant move and an adjustment to the parenting schedule? What kind of adjustment would be envisioned?
With the flexibility to sit down and think through all of these scenarios, various potential decisions could be talked about and discussed. A lot of divorcing people are not thinking about what is going to happen to them and their family 5 years down the road which I think is a great flaw in the traditional adversarial process. When this kind of thinking doesn’t take place, it causes a lot of litigation and hostility post-divorce.
In mediation, often a mediator would point out these scenarios and the parties have the ability to fashion an agreement in such a way that it would be comprehensive and address all possible outcomes. If they absolutely can’t agree, at the very least they can put a clause in the agreement that says if the residential parent needs to move and they cannot reach an agreement, they will try to resolve it through mediation before running to court, hiring attorneys and dealing with the financial and emotional expense of this process.
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The Law Firm and Mediation Practice of Alla Roytberg, PC