Thrive during a divorce? Sounds impossible? Not if you remember to THRIVE (Throttle Horrible Regret Into Victory and Exit! But what about that exit strategy? How do you gracefully exit when you have children and reside in his home state with no family or career prospects. Do you start knitting kangaroo pouches to sell on Etsy? Pray to the goddess in the woods for clarity and maybe a fifty to fall out of some unassuming dog-walkers trousers as you round the corner? Now there is hope!
In Matter of Tropea v. Tropea, 87 N.Y.2d 727-741  the New York Court of Appeals addressed the issue of whether it was in the best interests of the child to allow the mother to move from Onondoga County, the home of Mr. X and his entire clan to Schenectady County, where mom had family and job prospects. Prior to Tropea, the test for relocation was simply whether the move would prevent the non-moving parent from having meaningful access to the child.
In Tropea, the Court forged a two part framework to apply when a custodial parent moves the court to relocate with the child beyond a fifty mile radius of the jurisdiction. In Tropea, the mother filed a petition to relocate with the child from Onondoga County, New York, to Schenectady County. The father objected to the Mother’s petition in a cross petition, arguing that the distance would cause a severe strain on his relationship with the child. The court formulated a two-pronged test. First, the parent requesting permission to move must prove that it is more likely than not in the best interests of the child for the court to approve the move. Then, after the court is satisfied that the moving parent has met this somewhat amorphous burden, then the moving parent must prove that the opposing parent will not be denied “meaningful access” to the child after the relocation.
For this initial inquiry, whether the move is in the best interests of the child, the court may examine a veritable laundry list of factors relevant to the best interests of the child standard; including: the physical, mental, educational, psychological, spiritual, religious, and cultural background health, wellbeing and upbringing of the child; whether the move will foster closer relationships with extended family; whether the families’ financial or professional circumstances will improve, (in particular, the court must consider whether the petitioner is presently receiving state aid or welfare and whether the move would relieve the state of this burden; whether there exists a pre-existing relationship with extended family or half-siblings within the jurisdiction or in the new location; and, whether the relocation is likely to improve stability, mental and physical health of the child and the parent. Only after the petitioner has thoroughly persuaded the Court that this threshold has been met, the petitioner must then prove that the relocation will not deprive the other parent of meaningful access to the child.
Does this seem impossible? Overwhelming and confusing? First of all, take a deep breath. The hoop you must jump through is wider than you think. It is not a requirement that you prove each and every one of these factors. Consider the test to be more like a buffet where you choose only the brightest, crispest and freshest vegetables for your salad. Just as you use your metal tongs to choose the perfect yellow bell pepper slice, you only need to choose factors that clearly outline then fill in for the court why this move will give you the opportunity to provide a more stable life for your child than you could by remaining here in New York with said father (hereinafter referred to as “B.D.”) in the freezing cold, trying to study marine biology in the Hudson River.
The idea is to demonstrate to the court a complete picture of your life now and how it will be enriched in the new location. If that means a better job, better opportunities for advancement, extended family support, low-cost child care, religious or cultural immersion with your tribe or fellowship, then these are all factors you want to highlight in your case. If the move will allow you to live rent free in your aunt Hilda’s house in Boca Raton where you and your darling little munchkin will swim in the pool and play in the sand in exchange for your cleaning the house from top to bottom once per week while you pursue your Ph.d. in marine biology and Aunt Hilda just adores that little munchkin and practically begs to bounce him on her knee and read, “Juni B. Jones” while you hit the books, then show the court all of that! It is likely the court will agree that a degree in marine biology would be better served in Miami than Schenectady! And, meanwhile said father is out at Shooters lounge tossing back Jager-shots all night long then what I have to tell you is going to be music to your ears. That was the easy part. Now, you just have to prove to the judge that you will work diligently to co-facilitate “meaningful contact” between that adorable little munchkin and his father. You recall, the one we just described as cozied up to the thick maple lip of the bar, rotund belly curved around the lip of the bar like a well fitted saddle for the passionate equestrian. who is now, on his knees, with pallor quite green, on his knees, praying to the porcelain god of green (Jagermeyster not money, in this unfortunate scene). But you get the picture.
In the event you make it through this harrowing battery of tests, you have an excellent chance at be granted permission to move to another state or country or continent, presuming that you and bd are prepared to co-parent from different area codes and foster a true feeling of love and affection with the other parent that is so critical to child development.