Lawyers Manual - Unified Court System

112 Liberty Aldrich and Lauren Shapiro
If, on the other hand, your client has decided to seek a court order allowing
her to relocate before leaving New York, she should file a petition for custody and
permission to relocate. As explained more fully in the discussion of New York’s
relocation case law below, you should include as many supporting affidavits and
exhibits documenting the abuse and reasons for relocation as possible.
If your client already has been served with a custody petition, she is required
to appear in court, and the court could issue a warrant if she does not appear.
You should read the petition carefully along with any court orders to determine
whether the court has directed your client to remain in the jurisdiction until the
court appearance. If not, she may leave until the court date but should be
prepared to return.
Relocation Cases: New York State Order of Custody/
Visitation in Place
Many domestic violence victims feel trapped by the law into staying where
their abusers can harass them. Domestic violence often does not cease once the
parties have separated and an order of custody and visitation has been issued.
In many cases, the violence escalates, and harassment during pick-ups and dropoffs
for visitation is common. Relocation law and the penalties for failing to
follow court orders were not designed to protect women and children at risk of
violence, yet courts expect their orders to be followed and a victim of abuse
who does not follow them risks a finding of contempt, loss of custody, or even
criminal penalties. Additionally, interstate custody laws were designed to
prevent a parent from moving to a new state and relitigating issues even if the
move was intended to escape abuse. 58
If a court order granting your client custody already exists, it is generally
necessary to file a petition to modify the visitation order and to seek permission
to relocate prior to leaving the state. You should review the original order
carefully. Should your client fail to seek the court’s approval, she may be
violating the court order and could be found in contempt. If there is a visitation
order in place, you should strongly advise your client to seek court permission
before relocating.
Relocation cases are governed by case law, which applies to both inter and
intra-state cases. In considering a petition for relocation, the court must determine
whether relocation is in the best interest of the child under the totality of the
circumstances. Tropea v Tropea, 59 the Court of Appeals’ seminal relocation case,
held that the court should consider, among other factors, the existing
relationship between the children and the non-custodial parent, any potential
damage to that relationship if relocation is allowed, the reasons given for