We live in an increasingly mobile society. It is no longer common for a person to work for one employer for his or her entire career. People seek to relocate to another state, or even another country. There is no doubt that a relocation seriously disrupts the relationship between the non-custodial parent and the children. But such a relocation may be beneficial to the children for financial reasons. So what happens when the custodial spouse wants to relocate?

The answer is it depends. In 1996, the New York State Court of Appeals, in Tropea v. Tropea, overruled existing precedent and made it easier for the custodial parent to relocate. In Tropea, the court decided that the existing test of “exceptional circumstances” would no longer suffice. From now on, the party seeking to relocate must only show that the proposed move would be in the best interests of the children.

So what is the best interests of the children? Good question. There appears to be agreement among the trial courts that a desire to obtain a fresh start, or some other vague reason, is insufficient. On the other hand, a job offer coupled with increased financial security may be all that is needed. The trial court will look at the reason for move and whether the custodial parent has an actual plan, as well as the relationship between the non-custodial parent and the children. A new spouse or family in another state may be a factor, but certainly not a determinative one.

The bottom line is that the trial court has a huge amount of discretion is deciding this issue. The best interests of the children is, like art, in the eye of the beholder.