Relocations – a Quantitative Analysis
Scenario: a potential client walks into your office for a consultation. They say: “I have a custody relocation case and I want to know my chances of winning.”
You solicit the basic facts of the case from them, going through the common factors the courts consider in such cases. Toward the end of the consultation, the potential client asks the dreaded question, “Okay, how likely is it that I’ll win?” More troublesome, the potential client asks, “We’ve discussed the major factors the Judge will consider, but which ones are the factors which will really win me the case?” And just as you reach for your bottle of ibuprofen in your desk, the potential client asks, “And another thing: are there any trends – in other words, are courts more likely to grant relocation cases in recent years as compared to a decade or more ago?”
You’ll probably say something that makes you sound smart, but in the back of your mind, you realize that you don’t really know. You’re guessing somewhat based on your experience and reading what you can in the time you have to read – after all, you’re a very busy matrimonial practitioner. You’re frustrated because there seems to be a dearth of empirical evidence you can really rely upon to answer those good, well-meaning questions.
This article is an attempt to remedy the situation. This author had a recent custody relocation case, and was inspired to do the research leading to this article after the referee quipped at one of the conferences, “Well, there’s a trend towards denying such relocations in recent years.” I was quick to disagree, but realized after I left the conference I had nothing whatsoever to back-up my disagreement. More than likely, the referee also lacked the empirical evidence to buttress the
referee’s statement.
My research for this article consisted of reviewing Appellate Division cases granting relocations between 2004-2021.1 For purposes of this article, I did not consider court decisions that only granted temporary or interim relocations, as I wanted to limit my analysis to a review of those cases that heard all of the evidence – and thus were generally mandated to consider all relevant Tropea factors.2
Several decisions granting relocation also mentioned how the move would benefit the child educationally, emotionally, economically and/or culturally, but did not provide specifics as to how it would.3 Likewise, a few decisions characterized the mover as the “better parent” or “better suited to meet the child’s needs,” but related same in a very vague manner. These cases comprised a handful of such decisions in each time period and were thus not considered as statistically useful for purposes of this article.
In other cases, some issues were mentioned, but it was hard to discern whether they were actually factors relied upon in granting or denying the relocation – versus an “oh, by the way” comment.
Many decisions noted the ability to maintain some level of visitation of access time, though most of those that noted this as a factor also did not explain how this would be accomplished – especially in moves many states away. Moreover, there did not appear to be a distinction in the cases that made this statement based on the distance of the move itself (i.e., the cases that made such a statement sometimes approved moves many miles away, while others approved moves to states like Florida and Georgia – and even foreign countries). Indeed, in the cases making this statement, the courts seemed fine with the non-movers’ access time centered on breaks from school and summer vacation.
Moreover, one cannot assume a given relocation stands or falls based on the sheer number of factors the mover has put forth in his or her favor. Many factors could in isolation support a move, but based on the reluctance of a given court to interfere with the established relationship between the non-mover and children, the relocation could nevertheless be denied.
Likewise, the mover could assert little more than one or two factors in favor of the move and still win. As but two examples where the non-mover is in jail serving a long sentence or where the non-mover barely sees the child. Indeed, in the latter case, the court is in effect concluding that the non-mover’s relationship with the children would not be affected because there is no relationship.
Referring to the chart below, approximately 1 out of 5 decisions which approved the relocation cited only one factor approving the move. Again, there likely were other facts – and factors – presented to the trial court in such cases. However, given that the court in 21% of approved relocations felt only one main factor was enough should lead the practitioner to the conclusion that not all factors are weighed equally. Even one factor plopped on the scales of justice may be enough to tip them in one’s favor.
Nonetheless, a greater number of cases (approximately 24% of reported decisions) cited four or more factors justifying the approved relocation. Thus, while one huge factor in the mover’s favor may do it, the mover is better off presenting as much evidence as he or she can on as many applicable factors as possible.
Another general proposition that emerged is that the more specific and concrete the mover’s plans were, the more likely the relocation would be granted. In other words, if the neighborhood(s) the mover would go to had been identified, specific school(s) had been lined up (or even applied to), specific job opportunities had been identified (or specific job offers received), pediatricians had been ascertained, extracurricular activities had been researched, and specific houses or apartments had been looked into (and/or brokers had been contacted) – then the more likely the relocation would be granted.
In referencing the chart below, one should note the category “mover ordered to pay cost of, or do, transport” included cases where the order was done on the mover’s consent, or where it was noted the mover had offered to provide this as part of his or her case.
Furthermore, the chart category “significant job opportunity/transfer” also includes if that transfer or job opportunity is for the moving parent’s spouse or significant other.
One should also not conclude that merely because a particular reason is cited infrequently by the caselaw (as justifying – or denying – a relocation) that it should accordingly be given relatively little weight in a given case. Again, all of the cited factors – and more – are relevant factors in themselves, and even a few of them (or one or two) can tip the scales in a given case.
The first item to report is that there were 296 total cases analyzed between 2004-2021. Over this 18-year time-span, relocations were approved in 54% of all cases. However, in terms of trends, there was a significant difference between the approval rate in the nine-year time-span of 2004-2012 as compared to the time span of 2013-2021. Between 2004-2012, relocations were approved roughly 41% of the time. But between 2013-2021, relocations were approved a whopping 67% of the time.
If one looks at the Departments, the First Department had 11 denials between 2004-2012 and four approvals. The numbers flipped for the time-period 2013-2021: 20 approvals and four denials.
Likewise, in the Second Department, there were 41 denials between 2004-2012, with 30 approvals. Then between 2013-2021, there were 19 denials and 48 approvals.
Likewise with the Third Department – between 2004-2012: 22 denials and 20 approvals. However, between 2013-2021, 19 denials with 26 approvals.
The Fourth Department appeared to (mildly) buck the trend – it reflected 10 denials between 2004-2012 along with eight approvals. And between 2013-2021, there were nine denials and six approvals.
Now on to the factors considered. The obvious thing to say is the more factors one has in one’s favor, the more likely it is a relocation will be granted. But something which jumped off the chart for me was the number of cases which focused on one or a small number of factors – which the given appellate court likely felt (in the reported decision) were the prevailing factors leading to the approvals.
The leading reason by far for approval of the relocation case was “contact can be preserved via access.” A solid 34% of all cases mentioned that factor as one of the – and sometimes the only – factor for the approval. This factor in a nutshell means the mover has proposed a schedule whereby the non-mover can still maintain some semblance of a relationship with the children despite the move. Examples include expanded summer access (perhaps all or most of the summer), access time centered on breaks from school as well as additional opportunities for access time on three-days breaks.
Coming in second in the “most weighty factor” race: 21.6% of the cases mentioned the factor of “Extended Family/Others to Support Child/Closer to Family.” This factor includes the mover having family in the state she or he is moving to – and often little to no family in the original state. Buttressing this factor would be the lack of family close to the children on the non-mover’s side in the original home state.
Coming in a very close third (at 21%) was the factor moving parents always or mostly has been the primary custodial parent. Thus, when putting on your relocation case in favor of the mover, make sure not to overlook this factor.
A surprise in the reported approval cases (for this author at least) was the relative lack of any mention of a forensic psychological report or recommendation. Only five cases (3%) of the 162 that approved relocations from 2004-2021 mentioned such reports as a factor in granting the move. The decisions did not address why forensics were not more prevalent in such cases, at least not as specific factors cited justifying the move. One may surmise that on the main factors considered – the reasons for seeking or opposing move, quality of relationships between child and custodial and non-custodial parent, impact of move on future contact with non-custodial parent, degree child’s life may be enhanced economically, emotionally and educationally by move, and feasibility of preserving relationship between non-custodial parent and child through suitable visitation arrangement – psychological evidence is not as important as in the underlying custody determination.
Likewise, the “child’s preference” was a cited factor in only 10.5% of decision approving the move. This may be because – rightly or wrongly – the court may feel a non-adolescent child may not appreciate the impact a move would have on their relationship with the non-moving parent. That said, as with the initial custody determination, the older a child gets, the weightier this factor may become.
Another surprising find (for this author) was the number of cases citing the relative lack of involvement of the non-mover in, essentially, “joint custody” decisions on behalf of the children. While the percentage cited in the reported decision is not too high – at 8% – the mover should also not overlook such evidence at trial. Even if the non-mover does not have joint custody, she or he should look to be as involved as possible in all aspects of the children’s lives. If she or he is not – and merely sees the children on two weekends (or less) per month – the mover should make the case that for the vast majority of the month (the other 26-29 days, or 95%+ of the time) the non-mover is uninvolved with the children.
Another factor rarely cited – and somewhat of a surprise to this author – was “better schools” in the moving jurisdiction. Only four cases out of the 162 total cited this as a factor justifying the move. It may be that the school in the mover’s original home neighborhood may be poor, but it may be very hard to prove that schools in adjoining neighborhoods (or a few neighborhoods away) are not as good as the schools in the moving state or city. By and large, there are excellent schools in New York State and the mover would seem to have a tough time proving there are no good schools within 20-30 miles of their present home such that she or he wouldn’t need to move far away.
Indeed, this notion would also seem to apply to moves justified on “better job prospects” in the moving jurisdiction. Although this factor was cited in 15.4% of decisions approving relocations, one would think the mover would be hard-pressed to prove there are no decent jobs in his or her county or an adjoining county.
As of this writing, New York State overall had a 3.1%4 unemployment rate – the lowest rate since 1976. Certainly many are underemployed, gave up looking or settled but at much lower-paying jobs than they had pre-pandemic. But if the mover is going to rely on this as a factor, his or her counsel should advise them to submit a detailed, written job search diary detailing his or her diligent effort to find work commensurate with prior earnings, as well as education, ability, and experience.5
In sum, I refer the reader further to the attached chart for the full statistical analysis. When presenting one’s relocation case – or defending against it – counsel should review all cited factors and marshal as much admissible evidence as possible to buttress one’s case for – or against – the proposed move.
David Bliven is a matrimonial practitioner with 25 years of experience and offices in White Plains and Riverdale, New York. He is the author of several books, among them Navigating Your New York Divorce Case and Navigating Your New York Family Court Case. He blogs at https://www.blivenlaw.net/blog/.
Endnotes
