Custody and Relocation: Requesting Permission to Move with Minor Children

In the years following divorce, many custodial parents are faced with the challenge – and the associated legal hurdles – of determining whether they are permitted to relocate out of state or across the country with any minor children of the marriage.  The non-custodial parent may object to the decision and the move, and if the parties cannot agree, ultimately a judge will be empowered to determine whether the relocation will be allowed.  The law governing this decision is set forth in our state statutes and governing case law.

Prior to a change in the law in 2006, the parent seeking a relocation with minor children was required to prove to a court by a preponderance of the evidence that the proposed relocation was for a legitimate purpose, and, further, that the proposed relocation was reasonable in light of that purpose.  Only if that burden was met by the moving party, the non-custodial parent (the parent opposed to the relocation) had the burden to demonstrate to the court that the move would not have been in the best interests of the minor child or children.  Ireland v. Ireland, 246 Conn. 413, 717 A.2d 676 (1998).

General Statutes § 46b-56d(a)

This “burden-shifting” analysis adopted by the Supreme Court in the Ireland case in 1998 was replaced by our Legislature in 2006 with Public Acts 2006, No. 06-168, now set forth in General Statutes § 46b-56d.

Section 46b-56d(a) now reads: (a) In any proceeding before the Superior Court arising after the entry of a judgment awarding custody of a minor child and involving the relocation of either parent with the child, where such relocating parent would have a significant impact on an existing parenting plan, the relocating parent shall bear the burden of proving, by a preponderance of the evidence, that (1) the relocation is for a legitimate purpose, (2) the proposed location is reasonable in light of such purpose, and (3) the relocation is in the best interests of the child.

The effect of General Statutes § 46b-56d(a) is essentially to codify the three-part provisions of the Ireland rule, while at the same time relieving the party opposing relocation of its former burden of proving, by a preponderance of the evidence, that despite the moving party’s showing that relocation is for a legitimate purpose and is reasonable in light of that purpose, the relocation nevertheless fails to be in the best interests of the child.

Under today’s law, Section 46b-56d(a) now places squarely on the shoulders of the party advocating relocation the entire burden of demonstrating, by a preponderance of the evidence, not only that the relocation is for a legitimate purpose and is reasonable in light of that purpose, but also that the relocation is affirmatively in the best interests of the child.

Approving a Relocation Request

General Statutes § 46b-56d(b) further enumerates five specific factors that our courts are now statutorily obligated to consider in determining whether to approve a parent’s request to relocate with a child. Section 46b-56d(b) reads: (b) In determining whether to approve the relocation of the child under subsection (a) of this section, the court shall consider, but such consideration shall not be limited to:

(1) Each parent’s reasons for seeking or opposing the relocation; (2) the quality of the relationships between the child and each parent; (3) the impact of the relocation on the quantity and the quality of the child’s future contact with the nonrelocating parent; (4) the degree to which the relocating parent’s and the child’s life may be enhanced economically, emotionally and educationally by the relocation; and (5) the feasibility of preserving the relationship between the non-relocating parent and the child through suitable visitation arrangements.

Tropea v. Tropea

These factors were first adopted by the Ireland court from the New York Court of Appeals case of Tropea v. Tropea, 87 N.Y.2d 727, 665 N.E.2d 145, 642 N.Y.S.2d 575 (1996), under the court’s supervisory authority. Under Ireland, each of the Tropea  factors is to be considered, although not exclusively, and no single factor is to be presumed to carry dispositive weight. Ireland v. Ireland, supra, 246 Conn. 434.

“Moreover, any other factors or circumstances that could have a bearing on the court’s determination of the child’s best interests should be considered and given the appropriate weight in the court’s analysis.” Ireland v. Ireland, supra, 435. The ultimate goal in considering these and other factors deemed appropriate by the court is to facilitate an accurate case-by-case determination of whether the relocation proposed by the moving party indeed lies in the best interests of the child.  Ireland v. Ireland, supra, 433-34.

By:  H. Daniel Murphy

Whether you are considering or opposing a relocation of minor children after divorce, it is suggested that you consult with family law attorneys who are experienced in these matters.  For any further information or confidential inquires regarding this posting, please contact Attorney Joseph C. Maya at 203-221-3100 or jmaya@mayalaw.com.

Our family law firm in Westport Connecticut serves clients with divorce, matrimonial, and family law issues from all over the state including the towns of: Bethel, Bridgeport, Brookfield, Danbury, Darien, Easton, Fairfield, Greenwich, Monroe, New Canaan, New Fairfield, Newton, Norwalk, Redding, Ridgefield, Shelton, Sherman, Stamford, Stratford, Trumbull, Weston, Westport, and Wilton. We have the best divorce attorneys and family attorneys in CT on staff that can help with your Connecticut divorce or New York divorce today.