People who share custody of a child often live in the same city, and in some cases, they may include a provision in their custody agreement that requires them to live within a certain geographical area. Circumstances can change, however, and one parent may wish to move to another location. In such instances, the court typically must evaluate whether the geographical restriction is in the best interest of the child, as demonstrated in a recent New York opinion. If you are involved in a custody dispute, it is smart to contact a New York divorce lawyer to discuss your options for protecting your parental rights.
The Subject Agreement
Reportedly, the husband and wife entered into a marital settlement agreement that provided they would share custody and enjoy equal visitation time with their children. The agreement also dictated that they would reside in the same geographic location. Subsequently, the husband relocated to a home outside of the area defined by the agreement and filed an application to modify the agreement. The wife then filed an affidavit seeking enforcement, a recalculation of child support, and changes in the visitation schedule. She requested primary full custody of the children as well.
Geographical Restrictions in Custody Cases
In evaluating the parties’ applications, the court noted that the relief requested by the mother could only be granted if there was a change in the circumstances and the modifications sought would be in the best interest of the children. The court determined that the father’s relocation outside of the geographic area set forth in the agreement constituted a change in circumstances sufficient to warrant such relief, but the agreement lacked clarity in that it did not define what sanctions if any, either party would face for violating the geographic restriction.
Further, the court pointed out that the evidence regarding the impact of the change of the father’s residence would have on the children. The court elaborated that some appellate courts sitting in New York have found that where the parties negotiated a geographic limitation, it is in the best interest of the children to require enforcement of the agreement. The court noted that more recently, however, the preference of appellate courts to hold parties to the terms of their agreement with regard to geographic restrictions seemed to have waned.
More recently, the appellate courts required a party seeking relocation to set forth fact sufficient to establish the need for a hearing on the issue of whether relocation was in the child’s best interest. Here, the court found that there was sufficient evidence of a change in circumstances to warrant a hearing before a new judge and transferred the matter for resolution.
Speak to a Dedicated New York Family Law Attorney
Co-parents may enter into custody agreements that contain terms limiting the geographic areas they can live, but the courts will only enforce such agreements if they find them to be in the best interest of the child involved. If you have questions regarding the custody of your child, it is smart to speak to an attorney. Ksenia Rudyuk is a dedicated New York lawyer who is proficient at helping parties navigate custody disputes, and if you hire her, she will advocate zealously in your favor. You can reach Ms. Rudyuk through the form online or at 212-706-2001 to set up a conference.