In the first case, Tropea v. Tropea, the custodial parent sought permission to relocate from Onondaga County to the Schenectady area so that she could settle into a new home with her fiance and raise the children in a new family unit. The Judicial Hearing Officer denied permission to relocate. On appeal, the Appellate Division reversed.
In the second case, Browner v. Kenward, the custodial parent sought permission to move with her parents, with whom she resided, from Westchester County to Pittsfield, Massachusetts -- 130 miles away -- where she had recently obtained employment. The Family Court allowed relocation. The Appellate Division affirmed.
In the absence of a clear standard, the lower courts formulated a three-step analysis in relocation cases. The first step determined whether the relocation would cause a disruption of "regular and meaningful access." In cases where such a disruption was unlikely, the courts generally discontinued the analysis and allowed the move. Wilson v. Wilson, 629 N.Y.S.2d 326 (N.Y. App. Div. 1995). When a potential for disruption existed, it created a rebuttable presumption that the move was not in the best interests of the child. The custodial parent needed to demonstrate "exceptional circumstances" necessitating the move to justify the proposed relocation. Weiss v. Weiss, 52 N.Y.2d 770 (N.Y. 1981) (denying relocation on determination that no "exceptional circumstances" existed); Shed v. Sofia, 70 N.Y.2d 997 (N.Y. 1988) (allowing relocation on determination that an "exceptional circumstance" existed). The analysis proceeded to the third step, consideration of the best interests of the child, only after finding the relocation potentially disruptive to the non-custodial parent's visitation and a justification based on exceptional circumstances.
Presenting a list of factors courts should consider, Tropea emphasized the mechanical nature of the three-tiered formula. Even when a move does not deprive a non-custodial parent of meaningful access, the court a need to weigh the diminished access against the custodial parent's reasons for the move and the benefit or harm to the child. Although not exhaustive, the court's list of factors is extensive and includes the child's ties to the community, the feasibility of a parallel move by the non-custodial parent, the effect of the relocation on the quality of the child's lifestyle and extended family relationships, as well as the parent's reasons for seeking or opposing the move. Tropea at para. 18-23.
Tropea signifies a move away from a formulaic analysis in relocation decisions and instead prefers factual determination of the child's best interests. This approach treats relocation cases more like traditional custody modification cases, in which the courts often maintain stability by continuing the existing custodial arrangement absent compelling reason. By rejecting the "economic necessity" language increasingly used by lower courts, Tropea appears to increase the custodial parent's ability to move. See, e.g., Atkinson v. Atkinson, 602 N.Y.S.2d 953 (N.Y. App. Div. 1993) (using "economic necessity" standard); Wheaton v. Anderson, 638 N.Y.S.2d 379 (N.Y. App. Div. 1996) (applying "economic necessity" test rather than less restrictive "economic betterment" test). The Court of Appeals has refocused the analysis on the child's best interests rather than the wants, needs, or rights of either parent.
Tropea is a potential windfall for custodial parents. Previously, custodial parents had to frame their relocation justifications around their ex-spouse's rights. Now the child's best interests will be at issue from the start. However, litigants will be losing the predictability of the non-child-centered approach, leaving both parents uncertain of the weight each of the factors should or will receive from the JHO. Questions remain as to how a JHO will balance a child's ties to a local church or synagogue against the potential relocation to an area rich with extended family. Questions will surely arise as to how JHOs should balance each of the myriad of factors listed in Tropea against one another.
In California, the courts initially adopted a less restrictive view of the right of a custodial parent to relocate. Dozier v. Dozier, 334 P.2d 957, 961 (Cal. Ct. App. 1959) (stating that under ordinary circumstances a custodial parent should be allowed to change residence freely). However, Dozier acknowledged an exception to this right to relocate when a change in residence would cause physical harm to the child. Id. at 962 (denying relocation because the difference in air quality in Connecticut would subject the child to asthma attacks). In later cases, the courts de-emphasized the custodial parent's right to relocate and, instead, focused on the best interests of the child. See Burgess v. Burgess, 39 Cal. Rptr. 2d 213 (Cal. Ct. App. 1995) (holding that the best interests of the child dictate the extent to which parents are free to exercise choices which affect the nature and amount of contact a child has with both parents); Cal. Fam. Code § 3011 (West 1995) (allowing consideration of the nature and amount of contact with both parents when determining what is in the best interest of the child). Burgess listed several factors to be weighed when considering the best interests of the child, such as the location in which the child will live as a result of relocation, the distance of the child from the non-custodial parent, and the child's schooling. 39 Cal. Rptr. 2d at 213-23. The driving policy behind the best interests standard is the reinforcement of a continuing relationship between the child and both custodial and non-custodial parents. See Carlson v. Carlson, 280 Cal. Rptr. 840, 844 (Cal. Ct. App. 1991); Murga v. Murga, 163 Cal. Rptr. 79, 81 (Cal. Ct. App. 1980).
With this change of focus, California courts are more willing to limit the ability of divorced parents to change residence in certain instances. See Carlson, 280 Cal. Rptr. at 840 (upholding a decision to prohibit either parent from moving away from California without the consent of the other parent). After a careful analysis of the child's best interests in relocation cases, a California court may even require a change in custody. See Rosson v. Rosson, 224 Cal. Rptr. 250 (Cal. Ct. App. 1986).
Texas also bases its custody determinations on the best interests of the child standard. See Tex. Fam. Code Ann. § 14.07 (West 1977); see also Lebowitz v. Lebowitz, 403 S.W.2d 871 (Tex. Civ. App. 1966) (upholding trial court's restriction of the residence of the child in question to the state because such a restriction would be in the best interests of the child). Texas law in this area operates on the presumption that it is usually in the best interests of the child that the custodial parent encourage maximum reasonable visitation by the non-custodial parent. Wood v. Wood, 510 S.W.2d 399 (Tex. Civ. App. 1974).
New Jersey has codified its custodial relocation law. N.J. Stat. Ann. § 9:2-2 (West 1993). Until 1988, New Jersey courts required a showing of the benefit of the move to either the custodial parent or the child before allowing relocation. Cooper v. Cooper, 491 A.2d 606, 613 (N.J. 1984). However, in Holder v. Polansky, 544 A.2d 852 (N.J. 1988), the New Jersey Supreme Court reinterpreted § 9:2-2, and reversed this presumption: "short of an adverse effect on the non-custodial parent's visitation rights or other aspects of a child's best interests, the custodial parent should enjoy the same freedom of movement as the non-custodial parent." Id. at 856.
Illinois is an exception to the trend towards increasing the custodial parent's freedom to relocate. Prior to 1982, a custodial parent only had to show that a relocation was not inconsistent with a child's welfare. Marriage of Burgham, 408 N.E.2d 37 (Ill. App. Ct. 1980). In 1982, an amendment to the Illinois relocation statute, Ill. Ann. Stat. ch. 750, para. 5/609 (Smith-Hurd 1993), became effective. It reads: "The burden of proving that such removal is in the best interests of such child or children is on the party seeking the removal." The Illinois Supreme Court ruled that this amendment required the custodial parent prove that a relocation would affirmatively benefit the child. Marriage of Eckert, 518 N.E.2d 1041, 1045 (Ill. 1988).
Special thanks to JoAnne Miner, Director of Cornell Legal Aid Clinic, for her assistance in the preparation of this commentary.