Monday, August 30, 2010


What should an individual do if they lack a custody order from a Court of law, but wish to relocate with their child, absent consent of the other parent?

Some parents just move and hope for the best, but this is a very bad idea if there is no official custody order on that parent’s behalf. Of course, there are cases in which a parent relocates without a custody order, and they are allowed to stay in the state to which they relocated despite the other parent’s effort to have the child returned. In fact I just represented a woman who relocated with her children to Oklahoma and despite the father’s efforts to have the children returned, my client was granted an order of custody and allowed to stay in the state to which she relocated. The Judge determined it was in the child’s best interest to stay in the state where they had relocated to and for the mother to have sole custody. Of course, the Father is entitled to visitation with the children and the expense of such travel will be split among the parties. So, with some creative litigation strategies, it is possible to relocate successfully without an initial court order, but it is not recommended.

In a recent Nassau County case, when the wife relocated with her children, the court decided that the father shall have custody of the children and the children were ordered to return to New York. The Wife filed for custody of the children, but the court determined that she was not able to prove that it was in the best interest of the children to move, even though the children had stated they wish to live with their mother in the other state. The Court believed that that father tried harder to foster a relationship between the children and their mother and that he could provide more financial stability for the children.

In conclusion, it is a gamble just picking up and relocating with children absent permission of the Court and an order of custody from the Court. If you are ordered to come back to your original state you may not have a home to come back to, and you may lose the physical custody you had as the court may order the children to move back and that may mean having to relinquish the children to the other parent until you are again able to find a suitable place to reside. Moreover, if the children have already moved and have already been enrolled in school, having to leave a school and having go back to the original state and start another school might have a huge emotional impact on the child.

Therefore, be smart about your decision to relocate. My suggestion is speak to the other parent first. If you cannot work out some agreement with the other parent, then either file for Custody or Modification of Custody with the court, and ask the court for permission to relocate before taking any big steps towards relocation. In court, you will most likely have to go through a relocation trial if there is no settlement, so an attorney will be necessary to create the best litigation strategy with you to make relocation a likely possibility.

If you have any thoughts, questions or comments about this post than I would love to hear from you.

Until Next Time,

Helen M. Dukhan, Esq., LL.M. @


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