How Can I Have A Child Relocate From New York To My Home Country?

In principle, it may be possible to relocate with your child after an international divorce or separation, but it’s rarely an easy thing to do. Absent an agreement with the other parent, there are many different factors that can affect the decision of the judge.

It is generally wisest to aim for relocation as part of the initial custody dispute. If you try to relocate later on, you will face a tougher standard for showing that something serious has changed so much that the original custody arrangement no longer works.

The Complexities Of International Custody Disputes

People move to New York from all over the world for all sorts of reasons, and there are all sorts of reasons that things don’t always work out for the couples and families that move here. New York City is an expensive place to live, and if things don’t work out with a job, it may be too expensive to continue living here. Immigration issues can create problems. Cultural differences and different lifestyles can wear people down.

However, couples cannot include custody considerations in their prenuptial or postnuptial agreements. This means that there is no good way to plan ahead for a potential custody dispute and relocation.

Accordingly, when international couples head toward divorce, they must resolve their custody disputes based on a wide variety of factors, all of which the judge will review with the best interests of your child at heart:

• The amount of time your child has been living in New York,
• Whether your child has citizenship or an established home abroad or another important nexus with that place,
• The child’s preferences (when your child is old enough),
• Your ability to work and negotiate, i.e. coparent, with your child’s other parent,
• Your ability to convince the court that you will actively work towards the maintenance of a strong relationship with the other parent, 
• The quality of life that you may be able to offer to your child in your home country,
• The reasons for your relocation, such as work or marriage, etc.

The Child’s Best Interests Take Precedence

Importantly, your child’s best interests are the top concern for New York courts, which adhere to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).

It is also so for the European courts and international courts that adhere to several European or international conventions.

Many of the factors these courts will use to determine whether relocation is in your child’s best interests remain common from one jurisdiction to another and include the following:

• Each parent’s motivation for seeking or opposing the move 
• The impact of the move on the child’s relationship with the noncustodial parent
• The feasibility of suitable visitation and the degree to which the move will enhance the child’s life
• Economic necessity
• Financial support and financial assistance with child care if one parent’s extended family lives nearby, as well as the possibility to live in a rent-free place (at a family member’s home)
• Whether the relocation will enhance the child’s life economically and emotionally

Unless one of the parents is abusive, the courts generally try to make sure a child has a continued relationship with both parents. Historically, this has made it difficult for parents to pursue international relocation. 

In order to create a legal framework for families seeking relocation, while not binding, the Washington Declaration on International Family Relocation was adopted in March of 2010. However, it has remained a very harsh standpoint to reach. Recently, courts have started to take a more open-minded approach to the idea since about 100 experts, such as lawyers and judges from around the world, met to discuss the 15 years of the adoption of the Washington Declaration, and have highlighted the need for courts to address the relocation issues with an open mind in a global world with international families. While this is a nonbinding declaration, some courts have explored more creative ways to determine the child’s best interests in relocation cases.

International Custody Disputes Demand A Strategic Approach

Although courts have begun to reevaluate their approach to international custody relocation since the introduction of the Washington Declaration, parents still face considerable challenges to relocate after a divorce or a separation. It is important to be strategic about how you approach the matter and keep the following in mind:

• Do NOT simply take your child overseas without a legal agreement. The other parent and the courts may view this as an abduction, and it could get you in legal trouble and damage your custody case.
• Many parents who manage to bring their children to their home countries with them win that opportunity through negotiations. These negotiations can be complex and demanding, and you may be willing to consider how you can coordinate visits with the other parent and how much you can willingly sacrifice for the opportunity to bring your child home with you.
• It is vital to make sure that any legal arrangements you negotiate will travel with your child, meaning that they are valid and enforceable both in New York and overseas. This generally means working with attorneys in both of the countries in question. Experienced international family law attorneys may have partnerships with attorneys overseas. Established partnerships such as The Alliance that my firm has with the French firm bwg can help ensure that your concerns bridge the different legal landscapes.

It can be hard to maintain a strategic mindset throughout the turmoil of an international divorce or separation, but the question of international relocation often requires a long-term view. The field is full of stories of couples that spent years in custody disputes before one side decided to compromise. It is important to work with an attorney who understands the process and can help you understand your position and strategy at each stage of it.