Question #12

To correctly answer your question, I need to know in what state you are located. In New York State, up until recently, the courts have been very reluctant to allow a custodial parent to take a child far away from the other parent. As of late, the courts have been much more receptive to such moves if the proposed relocation would “serve the child’s best interests.”

Ultimately, each relocation request must be considered on its own merits with due consideration of all the relevant facts and circumstances and with the predominant emphasis being placed on the best interests of the child.

Some of the criteria used by the courts in making their determination are: 1) each parent’s reasons seeking or opposing the move; 2) the good-faith of the parent in requesting or opposing the move; 3) the quality of the relationship between the child and the custodial and non-custodial parent; 4) the impact of the move on the quantity and quality of the child’s future contact with the non-custodial parent; 5) the feasibility of preserving the relationship between the non-custodial parent and child through suitable visitation arrangements; 6) the possibility of devising a visitation schedule that will enable the non-custodial parent to maintain a meaningful parent-child relationship; etc.

In summary, the courts have left the decision to the discretion of the judge. He will make his decision based on an overall feeling of what he determines to be in the best interest of the child.

If you are located in New York and wish to pursue this matter further, please call me at 212-370-1660.

Leonard M. Weiner, Esq./Divorce Solutions

Question #73

Because you are a recent arrival in NY State (i.e., here less than one year), Kentucky, rather than NY, would have jurisdiction over any divorce or custody dispute you may have. However, I strongly recommend that you mediate this matter with your husband
And reach a mutually agreeable arrangement, rather than simply disappearing with the three girls.

Please call me at 212-370-1660 to arrange a meeting for the 3 of us to discuss this matter at greater length.

Leonard Weiner, Esq./ Divorce Solutions

Question #1

The courts in New York have become more receptive to the idea of the custodial parent moving out of state. Each case is reviewed individually by the court on its merits, with the prime consideration being the well being and benefit to be children. Generally, the courts are reluctant to allow one parent to take the children away and thus interfere with the ability of the remaining parent to visit and develop a strong relationship with the children. You can not simply take the children and run to a different state without first getting court approval.

Concerning your earnings that are greater than your spouse’s, it will all depend on how much of a gap between the two incomes there is, and your spouse’s ability to live on the income he makes by himself, and the economic level you both were accustomed to living at when you were married.
Once you file for the Separation Agreement, all the earnings of each party will belong to him/her individually from the date agreed upon, if you so provide in the Separation Agreement.

If you wish to discuss this matter at greater length and are interested in considering mediating these outstanding issues, please call me at 212-370- 1660.

Good luck!

Leonard M. Weiner, Esq./Divorce Solutions

Question #2

You do not indicate in what state you are located. In the State of New York, the courts have relatively recently allowed for a more lenient view of the custodial parent moving out of state for personal or material improvement in the family’s living standard. Until that time, the courts were very strict and rarely allowed a custodial parent to take the children out of state, where the remaining parent would have difficulty seeing the children regularly.
Today, however, each case will be investigated separately by the courts, and if the judge feels the move is in the “best interest of the children,” the judge may permit such a move.

Good luck!

Leonard M. Weiner, Esq./Divorce Solutions

Question #4

The Courts generally look to how the move will impact the non-resident parent’s ability to visit and be with the children. Thus, much would depend on how frequent your husband visits now, whether he has a car at his disposal, and whether the move will prevent him from seeing the children as much as he does now. The fact that you intend to move an only one-half hour away from your present location and that he has stopped paying child support are important and may influence the court’s decision. I strongly suggest that you consider mediating this matter rather than going to court, and I would be more than happy to meet with you and your husband to try to resolve this matter. Call me at 212-370-1660.

Leonard M. Weiner, Esq / Divorce Solutions

Question #5

To answer your question accurately, I must know whether he entered into a Separation Agreement with his spouse in which child custody was discussed and whether it discusses the issue of moving outside of the state with the child. Assuming that they did not agree upon this matter, the Courts in New York generally do not allow the residential parent to move outside of the general area with the child because it interferes with the non-residential parent’s ability to have significant contact with the child. As of late, the Courts have been more receptive to a residential parent’s request to move outside of the general living area, but the reasons must be significant and in the best interests of the child. Your husband should have grounds to prevent his ex from moving outside of the state with his daughter, and this should give him some leverage in renegotiating his child support obligations for such a child in the event she does move to Florida. Certainly, he has a strong argument that if his ability to continue an ongoing relationship with his child is interfered with, his child support obligations should be reduced.

I suggest he try to resolve this matter amicably with his ex before running into court. Courts are also very reluctant to change child support orders. I would be glad to discuss mediating this matter with him and his wife. Please have him give me a call at 212-370-1660.

Leonard M. Weiner, Esq.Divorce Solutions

Question #6

In general, the courts are reluctant to allow a custodial parent to move beyond a certain radius from the child’s residents if such a move interferes with the other parent’s ability to develop a meaningful relationship with the child.

In recent years, however, the courts have been somewhat more receptive to the idea of a custodial parent moving, especially if it is not too far away from the original home if the custodial parent can provide a good reason why it is in the best interests of the child to move. Providing the child with a healthy family setting with someone who cares for him, especially when the move is still within the city limits, may be entertained by a receptive judge. The decision will be left to the judge’s discretion.

I strongly suggest that you call may at 212-370-1660 to arrange for me to meet with both you and your husband to try to mediate this issue and try to settle it outside of the court, which is the best way to deal with this problem.

Leonard M. Weiner, Esq./Divorce Solutions

Question #7

Generally, the courts do not favor the residential parent moving away from the non-residential parent because it impairs the non-residential parent’s ability to develop a relationship with the child. However, the court’s primary concern is the best interests of the child. If you can demonstrate that your moving to Maryland will be in the best interests of the child because you will be able to provide a more secure family environment, with a more secure financial situation, the judge may permit the move. The courts in New York have become more sensitive to these issues of late and recently have allowed such moves much more frequently.

I strongly suggest, however, that you consider mediating this matter with your spouse, and I would be happy to meet with both of you to see if we can resolve this issue without having to go to court. Please call me at 212-370-1660 to discuss the matter at greater length.

Leonard M. Weiner, Esq./Divorce Solutions

Question #8

I cannot overemphasize the need to use experienced legal counsel when getting a separation or divorce. Here is another example of someone trying to cut corners by preparing her own papers, and now is in a pickle. Had you used experienced counsel, the separation agreement would have dealt with this problem of being the residential parent and wanting to move to a different location. To answer your question correctly, I would have to investigate whether there are any relevant provisions in the separation agreement.

Until recently, the courts in New York have been very strict about allowing a residential parent to move away with the child and thus interfering with the ability of the non-custodial parent to relate to his or her child. Today the courts are somewhat more open to extenuating circumstances. The court ultimately judges those circumstances based on the criteria of whether it is in the best interests of the child to move, not on the best interests of the custodial parent to move. The answer to your question will ultimately rest with the decision of the judge and your ability to convince the judge that your move is, in fact, in the best interests of the child and that the non-custodial parent will be able to maintain a viable relationship with the child despite the move.

This issue could have been resolved had you used experienced legal counsel who would have discussed this matter with you before you signed the separation agreement or divorce papers.

Nevertheless, if you are living in the New York City metropolitan area, I strongly suggest that you call me at 212-370-1660 to discuss mediating this matter with your spouse and trying to resolve this matter outside of the courtroom.

Leonard M. Weiner, Esq./Divorce Solutions

Question #9

If the property was purchased with marital funds during your marriage, you are entitled to approximately a one-half interest. He cannot take that away from you. However, assuming that you become the residential parent of the children, he will most likely be provided with liberal visitation rights. That would require your remaining with the children in the same approximate vicinity or within a certain radius of your present marital home, for him to be able to make these visitations. The courts are generally reluctant to grant the residential parent the right simply to move away and to force the other parent to relate to the children from long-distance unless there are extenuating circumstances, which must be in the children’s best interest, rather than the parent’s best interest.

Concerning the pension, you have an interest and his income and in his retirement accounts, including his pension for that portion of the period in which you were married. Your interest in the pension is a marital asset and not part of spousal support, and therefore will not terminate upon your remarriage.

If you are living in the New York City metropolitan area, please call me at 212-370-1660 to arrange for a meeting to discuss mediating your divorce. Mediation will be able to provide a forum in which we can all sit down together and work out an acceptable arrangement for both parties. Litigating this matter in court will be very expensive, and the result may not be to your liking.

Leonard M. Weiner, Esquire/Divorce Solutions