It is common for divorce settlements and custody agreements to contain “relocation clauses.” These provisions spell out the radius within which the residential custodian will be able to move without first seeking judicial approval. It is a proper subject of agreement between parents. It will almost always be honored, although such a provision can never be binding upon a court’s determination of what is in the best interests of a child.
Such a clause might read:
The parents have established their custody and visitation arrangement to reflect what they believe constitutes the best arrangements to meet their child’s needs to have a continuing and close relationship with both parties. The parties recognize that an arrangement that provided for less contact between the child and each of the parties would not be in the child’s best interests. Based upon the foregoing, the residential custodial parent agrees that prior to the emancipation of the child, he/she will not establish a domicile with the child at any point beyond ____________ miles of _______________.
That distance is often referred to as the “radius.” Relocation clauses must be careful to specify whether the radius is in road miles or “as the crow flies” (radial miles).
In actuality, the concept is one of time, not distance. A parenting schedule is constructed assuming that it will take a certain amount of time for the child to be transported from the residence of the physical custodian to that of the other parent. The parents’ agreement should contemplate the distance between homes as it may relate to dropping a child off at school on a Monday morning, allowing for mid-week visits, etc. Thus, a radius clause that allows for 50 road miles near the Thruway in upstate New York contemplates something very different than 50 road miles on Long Island. The latter trip might take twice as long.
The November 21, 2014 decision of Cortland/Thompkins County Supreme Court Justice Phillip R. Rumsey in Carreiro v. Colbert illustrates the problem. In that case, the parties resolved their divorce under a 2010 written stipulation that provided for joint legal custody of the parties’ minor children and primary placement with the mother. The Stipulation permitted the mother to relocate with the children within 200 miles of her then residence in Nyack. Their Stipulation further provided that if the mother relocated beyond that radius, (1) one-half of father’s visitations would occur in Rockland County, with the mother transporting the children at her expense; and (2) one-half of father’s visitations would occur in the area of the mother’s relocated residence, with the mother paying the father $200 per visit for travel fees (or, alternatively, the mother could exercise the option to transport the children to the father’s residence in Rockland County).
The mother relocated to Ithaca in August 2012. On the assumption that Ithaca is more than 200 miles from Nyack, the father commenced the current action seeking to recover sums he alleged were due him for traveling to Ithaca for visitation.
The father, moved for summary judgment, submitting no proof, other than his statement, regarding the distance between the mother’s prior residence in Nyack and her relocated residence in Ithaca.
In opposition, the mother stated that the straight-line, or radial distance between the street addresses of the two residences was 162.64 miles. The father did not contradict this, but argued that the Stipulation required that the 200-mile distance be measured by the driving distance.
Although neither party provided proof of the driving distance between the two residences, the court took judicial notice that it exceeded 200 miles using Google Maps (213 miles and 3 hours and 34 minutes). Justice Rumsey, therefore, concluded that resolution of the father’s motion turned on the interpretation to be given to the measurement of distance specified in the Stipulation. [Comment: If one asks MapQuest for the shortest distance, as opposed to the shortest travel time, the road distance might actually be less than 200 miles (197.56 miles from Nyack Village to Ithaca City Hall (see map)].
Justuce Rumsey noted that appellate precedent showed that the Stipulation was not ambiguous. It was required to be construed as obligating the mother to pay travel fees to the father only if she relocated more than 200 radial miles from her former residence in Nyack.
Accordingly, Justice Rumsey awarded the mother summary judgment, dismissing the father’s claim.