Relocation with Children After Divorce: Understanding New York’s Tropea Standard

What is the Tropea standard for relocation in New York?

The Tropea standard is the test New York courts use when a parent wants to move with a child and the move would affect the other parent’s time with the child. It comes from the Court of Appeals decision in Tropea v. Tropea, 87 N.Y.2d 727 (1996), which also decided a companion case, Browner v. Kenward.

The Court held that “each relocation request must be considered on its own merits with due consideration of all the relevant facts and circumstances and with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child.”

Before Tropea, some lower courts used a three-step test that required “exceptional circumstances” when a move would cut into the other parent’s “meaningful access.” The Court of Appeals set that test aside, explaining that it is “counterproductive to rely on presumptions whose only real value is to simplify what are necessarily extremely complicated inquiries.”

So there is no presumption that a primary residential parent may move wherever he or she chooses, and no presumption against a move. Both parents’ rights matter, but the Court said “it is the rights and needs of the children that must be accorded the greatest weight.”

Who has the burden of proof in a New York relocation case?

The parent who wants to move carries the burden. The Appellate Division, Second Department, puts it this way: “A parent seeking to relocate with a child bears the burden of establishing by a preponderance of the evidence that the proposed move would be in the child’s best interests” (Quinn v. Quinn, 134 A.D.3d 688 (2d Dep’t 2015)).

A preponderance of the evidence means more likely than not, and the court decides “based on all of the proof” (Tropea). The parent opposing the move does not have to prove harm, although evidence about that parent’s relationship with the child, and how the move would change it, is often central.

What factors do New York courts consider in a relocation case?

Tropea lists factors that “include, but are certainly not limited to”:

• each parent’s reasons for seeking or opposing the move;
• the quality of the child’s relationships with each parent;
• the impact of the move on the quantity and quality of the child’s future contact with the other parent;
• the degree to which the moving parent’s and the child’s lives may be enhanced economically, emotionally and educationally; and
• the feasibility of preserving the child’s relationship with the other parent through suitable visitation arrangements.

The Court also named other considerations that may matter in a particular case: the good faith of each parent in requesting or opposing the move, the child’s attachments to each parent, whether a schedule can preserve a meaningful relationship, the quality of the child’s life if the move is allowed or denied, the harm from continued hostility between the parents, and the effect on extended-family relationships. No single factor is decisive.

The child’s wishes

A child’s preference counts but does not control. In custody cases generally, the Court of Appeals has said a child’s expressed preference is “some indication of what is in the child’s best interests,” weighed in light of the child’s age and maturity and the potential for influence (Eschbach v. Eschbach, 56 N.Y.2d 167 (1982)).

In Family Court, the judge may appoint an attorney for the child when that representation will serve the purposes of the Family Court Act (Family Court Act § 249(a)).

Reasons for moving that courts take seriously

Tropea said that “economic necessity or a specific health-related concern may present a particularly persuasive ground for permitting the proposed move.” Other reasons, “including the demands of a second marriage and the custodial parent’s opportunity to improve his or her economic situation,” can also be legitimate, and courts should not dismiss them out of hand when the move as a whole would benefit the child.

In Tropea itself, the mother asked to move from Onondaga County to the Schenectady area to settle into a new home with her fiancé, and the courts approved the move. The Court added that relocation decisions are not to be made “as a means of castigating one party for what the other deems personal misconduct.”

A good reason still has to be proven and tied to the child. In Quinn, the Second Department upheld an order enjoining the mother’s move because she had not shown that “the children’s lives would be enhanced economically, emotionally, or educationally” by it.

Does the distance of the move matter?

Distance matters because it shapes the other parent’s contact, but it is weighed with everything else. Two decisions show the range:

• Browner v. Kenward (decided with Tropea). The Court of Appeals let stand permission for a 130-mile move from Westchester County to Pittsfield, Massachusetts. The father’s losses, including his mid-week visits, were “undoubtedly real” and “far from trivial,” but they did not deprive him of a meaningful opportunity to maintain a close relationship with his son.
• Quinn v. Quinn. The Second Department upheld an order enjoining a move of “about 32 miles,” from East Hampton to Westhampton Beach, which “significantly limited the father’s contact with the children.”

Tropea also recognized that, in many cases, “less frequent but more extended visits over summers and school vacations” can be just as good, or better, for a close parent-child relationship than frequent short visits.

The same analysis governs a move abroad. Tropea’s rule covers “each relocation request,” and the decision sets no separate or stricter test for international moves. In practice, travel time, cost and time zones bear directly on whether a workable schedule can preserve the other parent’s relationship with the child.

Can the court change custody instead of allowing the move?

A change in custody can be on the table. Tropea said that the other parent’s interest in securing custody, “as well as the feasibility and desirability of a change in custody,” may become important. Where the child’s ties to the other parent and the community are strong, a transfer of custody may be a realistic alternative to keeping the moving parent in place.

The Court also noted that, where the moving parent’s reasons are “valid and sound,” a court “in a proper case” might consider whether an involved and committed other parent could make a parallel move.

How a relocation case works in New York

Start with your custody order or settlement agreement. It may include a relocation clause, a notice requirement or a geographic limit. If both parents agree on a move and a new schedule, put the agreement in writing and consider asking the court to make it part of an order.

If you do not agree, the request goes to court:

• Divorce pending. Either parent can make a motion in Supreme Court. Under DRL § 240(1)(a), the court makes custody orders according to the child’s best interests and can issue them “from time to time before or subsequent to final judgment.”
• After the divorce. A parent can apply to the Supreme Court to modify custody, or petition the Family Court, which can modify a Supreme Court custody order on a showing of a subsequent change of circumstances unless the order reserves that power to the Supreme Court (Family Court Act § 652(b)).
• Parents who never married. A parent can bring a custody or visitation petition in Family Court (Family Court Act § 651(b)).

Both statutes contemplate temporary custody and visitation orders before a final decision (DRL § 240(1)(a-1); Family Court Act § 651(e)). The final decision is made on the evidence, so expect proof about the reasons for the move, the child’s routine, schools and relationships, and a proposed schedule.

Moving first and asking later is risky. If an order or agreement requires consent or court approval, moving without it can lead to enforcement or modification proceedings, and Tropea lists “the good faith of the parents in requesting or opposing the move” among the considerations. Note that the automatic orders in a pending divorce do not address relocation; see our guide to automatic orders.

Preparing your side of a relocation case

If you want to move

• Document the reason, such as a written job offer, school and housing information, family support or a health need.
• Show concretely how the child’s life would improve economically, emotionally or educationally.
• Propose a realistic schedule for the other parent, covering school breaks, summers, holidays, video calls and travel costs.
• Give notice early, share information and follow any existing order or agreement.

If you oppose the move

• Document your involvement, such as school pickups, activities, medical visits and time actually spent with the child.
• Explain how the move would change the quantity and quality of your contact.
• Respond to the stated reasons and offer alternatives, such as a different schedule or a closer location.

If the two of you may be able to agree on a plan, mediation is one way to work out the details; see the benefits of mediation.

Frequently Asked Questions

Can I move out of New York with my child without the other parent’s consent?

Start with your custody order or agreement, which may require consent or court approval for a move. If the other parent objects, a court decides under the Tropea standard, with predominant emphasis on the child’s best interests, and the parent who wants to move must prove by a preponderance of the evidence that the move serves the child. Moving without a required consent or approval can lead to enforcement or modification proceedings.

Is there a presumption in favor of the primary custodial parent’s move?

No. The Court of Appeals rejected presumptions and threshold tests in relocation cases in Tropea v. Tropea (1996), and each request is considered on its own merits, with predominant emphasis on what outcome is most likely to serve the child’s best interests. The parent seeking to move carries the burden of proof, and the court weighs all relevant factors, including the effect on the child’s relationship with the other parent.

What factors do New York courts consider in a relocation case?

Under Tropea, the factors include each parent’s reasons for seeking or opposing the move, the quality of the child’s relationship with each parent, the impact on the quantity and quality of the child’s future contact with the other parent, how much the move may improve the child’s and moving parent’s lives economically, emotionally and educationally, and whether suitable visitation arrangements can preserve the child’s relationship with the other parent.

Does the distance of a move decide a relocation case?

No. Distance matters because it affects the other parent’s contact, but it is weighed with everything else. The Court of Appeals let stand approval of a 130-mile move from Westchester County to Pittsfield, Massachusetts. The Second Department upheld an order enjoining a move of about 32 miles within Suffolk County because the mother did not show the children’s lives would be enhanced and the move significantly limited the father’s contact.

Can a court change custody when a parent wants to relocate?

It can be considered. Tropea recognized that the other parent’s interest in securing custody, and the feasibility and desirability of a change in custody, may become important in a particular case. Where a child’s ties to the other parent and community are strong, a transfer of custody may be a realistic alternative. A court might also consider whether an involved other parent could make a parallel move.

Relocation cases are decided on evidence, so preparation matters whether you hope to move or want to keep your child close. Joel Yacoob handles child custody and parenting-time matters in Supreme Court and in Family Court for Neuhaus & Yacoob. You can start your case online or call (718) 975-1123.

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This article is for general information only and is not legal advice. Reading it does not create an attorney-client relationship. The law changes and every situation is different; consult a lawyer about your own circumstances.