Relocation-Driven Custody Modification: A Parent’s Unwillingness to Foster the Other Parent’s Relationship Can Tip Best-Interests in Favor of the Relocating Parent

1. Introduction

Matter of Mark JJ. v Stephanie JJ. (Appellate Division, Third Department) addresses a custody modification arising from a failed, initially joint relocation plan. After a 2017 consent custody order gave the mother sole legal and primary physical custody—with extensive parenting time to the father—the mother proposed relocating with the children to North Carolina. The father supported the plan, moved first, and established housing and employment in Greensboro. The mother then decided not to move and kept the children in New York.

The father filed to modify custody and sought permission to relocate the children to North Carolina. Following a fact-finding hearing and Lincoln hearings with the children, Family Court awarded joint legal custody, primary physical custody to the father, and structured long-distance parenting time to the mother. The mother appealed.

The central issues were (1) whether modification served the children’s best interests (the parties did not dispute a change in circumstances), and (2) whether relocation to North Carolina, as part of the modified custody arrangement, was in the children’s best interests under New York’s relocation framework.

2. Summary of the Opinion

The Third Department affirmed. It held that Family Court’s best-interests and relocation determinations had a sound and substantial basis in the record, particularly given Family Court’s credibility findings and its assessment that the mother was unwilling to foster the children’s relationship with the father. The appellate court also relied on evidence that the children adjusted well in Greensboro and that the move enhanced their opportunities.

3. Analysis

3.1. Precedents Cited

  • Matter of Jason VV. v Brittany XX., 230 AD3d 1398 (3d Dept 2024): Cited for the governing framework where change in circumstances is undisputed—i.e., the inquiry becomes best interests—and for enumerating core best-interests factors, including the “degree to which each parent is willing to foster a positive relationship” with the other parent. The court used this as a roadmap and then placed decisive weight on that “fostering” factor based on record proof.
  • Matter of Daniel XX. v Heather WW., 180 AD3d 1166 (3d Dept 2020): Reinforced the same procedural pivot: once change in circumstances exists, the case turns on best interests.
  • Matter of Faea OO. v Isaiah PP., 220 AD3d 1132 (3d Dept 2023), lv denied 41 NY3d 901 (2024): Provided the Third Department’s articulation of relocation considerations (reasons for/against move, relationships, impact on contact, enhancement of lives, feasibility of preserving the noncustodial relationship). The opinion applied those considerations to Greensboro and the parents’ motives and conduct.
  • Matter of Tropea v Tropea, 87 NY2d 727 (1996): The Court of Appeals’ foundational relocation decision. By citing Tropea, the Third Department anchored the analysis in the flexible, factor-based approach (rejecting rigid presumptions) and validated Family Court’s holistic balancing of practical and child-centered considerations.
  • Matter of Carol Q. v Charlie R., 230 AD3d 948 (3d Dept 2024) and Matter of Alicia SS. v Andrew RR., 224 AD3d 1207 (3d Dept 2024): Cited for the burden of proof in relocation: the party seeking to relocate bears the burden, by a preponderance of the evidence, to show the move is in the children’s best interests. The Third Department treated the father as the relocating party—even though the mother initially proposed the move—because the relief sought was relocation of the children.
  • Matter of Ashley UU. v Ned VV., 235 AD3d 1200 (3d Dept 2025) and Matter of Christine EE. v David FF., 235 AD3d 1156 (3d Dept 2025): These cases supplied the appellate standard of review: strong deference to Family Court on credibility and factual findings because it sees and hears witnesses, and affirmance if there is a “sound and substantial basis in the record.” This principle mattered because the mother’s explanations for not moving, and her claimed communications urging the father to slow down, were rejected as not credible.
  • Matter of Jahari BB. v Zada CC., 232 AD3d 1142 (3d Dept 2024) and Matter of Jesse FF. v Amber GG., 222 AD3d 1254 (3d Dept 2023): Cited as supportive authorities for affirming custody/relocation determinations where Family Court appropriately weighed the factors and where the record supports its conclusions. Their role here is confirmatory: they reinforce that the Third Department will not reweigh evidence absent a lack of record support.

3.2. Legal Reasoning

The court’s reasoning proceeds in three steps: (1) identify the governing best-interests and relocation standards, (2) apply those standards with heavy reliance on credibility findings, and (3) determine whether Family Court’s conclusions are supported by a sound and substantial basis.

A. Best interests after change in circumstances

Because the parties did not contest that circumstances had changed since the consent order, the appellate court framed the question as purely best interests. It then evaluated the traditional factors: home environment, stability, past parental performance, ability to provide, the children’s wishes (informed by Lincoln hearings), and—critically—each parent’s willingness to foster the children’s relationship with the other parent.

B. Relocation analysis (Tropea factors as operationalized in the Third Department)

The court accepted that the father bore the relocation burden and concluded he met it. Key record points included:

  • Reasons for the move: Greensboro was originally proposed by the mother as a safer alternative to the conditions she described in Monticello.
  • Children’s adjustment and enhancement: Family Court credited testimony that the children were doing well academically and socially in Greensboro and had access to activities not available in Monticello.
  • Preserving relationships through parenting time: Family Court crafted a long-distance schedule (spring break, half the summer, certain holidays, and additional times by agreement), demonstrating feasibility of maintaining the mother-child bond.

C. Credibility and conduct: the “fostering” factor becomes decisive

A defining feature of the opinion is how it treats parental conduct around the relocation as probative of best interests. Family Court found the mother’s stated rationale for refusing to move “disingenuous,” concluding her decision was not merely financial but “clearly personal in nature.” It also expressly rejected her claim that she cautioned the father to slow down, citing contemporaneous text messages encouraging his efforts and indicating she was house-hunting too.

Most consequentially, Family Court “heavily weighed” the mother’s unwillingness to foster the children’s relationship with the father—pointing to failures to encourage contact after the father relocated and scheduling a vacation over Father’s Day—while crediting evidence that the father supported the children’s bond with the mother, praised her parenting, and communicated cooperatively. The Third Department deferred to those findings and treated them as a sound basis for awarding primary physical custody to the father.

D. The appellate posture: “sound and substantial basis” review

The Third Department’s affirmance underscores that, in custody/relocation disputes, appellate review is constrained: where Family Court makes explicit credibility determinations and ties them to the statutory/common-law factors, the order will stand if the record reasonably supports it. Here, the combination of credited testimony, documentary corroboration (texts), and observed conduct satisfied that threshold.

3.3. Impact

Although the decision applies established standards rather than announcing a new test, it meaningfully clarifies how those standards operate in a “relocation gone sideways” scenario:

  • Relocation-related behavior can be best-interests evidence: A parent’s conduct before and after a proposed move—especially actions that impede contact—may weigh heavily in custody allocation.
  • The “willingness to foster” factor can outweigh stability with the prior primary custodian: Even where the existing custodial relationship is stable and the primary custodian is loving and fit, demonstrated unwillingness to support the other parent’s relationship can tip the balance.
  • Credibility is often outcome-determinative: The opinion highlights the litigation premium on contemporaneous communications (e.g., text messages) that can corroborate or refute relocation narratives.
  • Practical relocation orders are defensible on appeal: The structured parenting-time schedule illustrates how courts preserve the noncustodial relationship while still approving relocation, reducing the chance of reversal by addressing feasibility directly.

4. Complex Concepts Simplified

  • Custody modification—“change in circumstances”: Before changing an existing custody order, the court typically requires proof that something significant has changed since the last order. Here, that point was not disputed, so the case turned on best interests.
  • “Best interests of the children”: A multi-factor, child-focused assessment (not a reward/punishment of parents), including stability, home life, parental fitness, and cooperation.
  • Relocation (Tropea analysis): New York uses a flexible balancing test—courts consider reasons for the move, effects on relationships and contact, benefits to the child, and workable visitation alternatives.
  • “Preponderance of the evidence”: The civil burden of proof—more likely than not.
  • Lincoln hearing: A confidential interview of the child by the judge (typically outside parents’ presence) to learn the child’s views without placing the child in the middle of parental conflict.
  • Joint legal custody vs. primary physical custody: Joint legal custody usually means shared decision-making authority; primary physical custody concerns where the children live most of the time.
  • “Sound and substantial basis in the record” / deference: On appeal, the court will not redo fact-finding if the trial judge’s decision is reasonably supported by evidence, especially where credibility was assessed live.

5. Conclusion

Matter of Mark JJ. v Stephanie JJ. reinforces that New York relocation and custody-modification decisions remain fact-intensive under Tropea, but it also spotlights a practical, often decisive consideration: which parent will actively foster the children’s relationship with the other parent. Where Family Court reasonably finds that one parent impedes contact or minimizes the other’s role—particularly in the context of a proposed move—the “fostering” factor can substantially drive the best-interests outcome, and the Third Department will defer to that determination when supported by credible testimony and record evidence.