On Relocating to Another Country After a Divorce: What Rights Does the Left Behind Parent Have?
In New York the ruling case on relocation is Tropea v. Tropea. In Tropea the Court of Appeals ruled that there are no set rules for relocation. It will be determined, after a hearing, whether a parent had the right to relocate with a child–if the move is in the child’s best interest and if the parent has a legitimate reason for relocating, like a new job, marriage, etc (which would serve to improve the child’s interest as well.)
The parent who wishes to relocate will have to show by clear and convincing evidence that the move is in the best interest of the child (and parent) and that the non-custodial parent will still have access to the child.
The problem with international relocations is that they tend to divest the [New York] courts of jurisdiction. That is a problem because as soon as the parent is out of the jurisdiction of New York, he or she can stop complying with the New York orders, including allowing the non custodial parent to have a relationship with the child. And if the relocation is to a country that does not recognize the Hague Convention, then the noncustodial parent is out of luck. Neither the New York courts or an international tribunal can help them at that point.
But there are ways that an attorney or court in New York can reduce the risk of a custodial parent relocating with a child and cutting the non-custodial parent out of the child’s life.
In some jurisdictions, like California, the courts help to protect the non-custodial parent by requiring the custodial parent to do the following before relocating with a child:
a)post a substantial financial bond in a specific amount sufficient to ensure compliance with the court’s judgment and orders;
b)consent to California’s continuing jurisdiction over the child;
c) agree to a prohibition against attempting to modify the judgment except upon application to a California state court;
d) agree that any attempt by such parent to modify the judgment by application to any non-California court could be deemed a violation of the court’s judgment and grounds for forfeiture of the bond and other appropriate sanctions;
e) register the trial court’s judgment with the proper authorities in the foreign jurisdiction; and
f) refrain from taking the child to [the foreign jurisdiction] until the judgment was registered and until the trial court made a further determination that she had fully complied with the court’s judgment.
There are additional methods that other jurisdictions employ to protect the interests of noncustodial parents, including providing that the custodial parent should create a trust account to cover travel expenses, requiring that the custodial parent provide an adult to travel with the child, and requiring that the custodial parent waive extradition if there is an arrest warrant issued for parental kidnapping.
But relocation is always a tricky issue, rife with risk. The non custodial parent is definitely at a disadvantage in this scenario. Still, it is unreasonable to expect a custodial parent to remain in the state if relocating will improve his or her life. There is no right or wrong answer to the question. There is no yes or no. It’s always going to be a balancing act and the courts will ultimately make what hopefully will be the right decision for that family.