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Can I Move the Children Out of State?

Divorce is never easy for anyone involved, including minor children if there are any. Making matters more difficult is the fact that unlike most other types of litigation, the issues supposedly resolved in a divorce can continue to be issues for years after the divorce decree is entered. Custody and visitation with minor children, for example, is frequently revisited long after a divorce decree is entered. If you have physical custody of your children in the State of New York and wish to move out of state, you may be wondering " Can I move the children out of state? " Unfortunately, there is no simple "one size fits all" answer to that question because the answer depends on a number of factors.

The first factor to consider if you want to move out of state with your children is the current custodial order. Custody is really divided into two parts - physical and legal. Physical custody refers to the parent with whom the children live most of the time. Legal custody refers to the rights and responsibilities pertaining to important issues relating to the children such as education, religion, and medical care. Your ability to move with the children, therefore, depends on what type of custody you have. Do you have sole physical and legal custody of the children? If the answer is yes you may be able to move without the other parent's consent and/or without court approval. In most cases, however, the other parent has joint legal custody at least, making it more difficult to pick up and move out of state.

If the other parent consents to the move you shouldn't have any problems moving either; however, you should obtain that consent in writing. In addition, your move will likely change the parenting time arrangements, further necessitating a written agreement. Because you are the one moving the children away from the other parent you may need to shoulder the majority of the financial burden involved in long-distance visitation as well.

If the other parent has joint legal and/or physical custody and opposes the out of state move you will likely need to obtain a "Move Away" order from the court. This will require you to petition the court and convince the court at a hearing that the move is necessary and in the best interest of the children. Simply wanting a change of scenery will not be sufficient for a court to grant the request. Career, school, or financial reasons for the move are more likely to convince a judge that the move is best for you and your children.

If you are considering an out of state move with your children consult with the experienced family law attorneys at Simon & Gilman, LLP before making arrangements for the move.

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