New Jersey Divorce and Family Lawyer Blog
In a perfect world, the issue of relocation or removal would never come up in the context of either divorce litigation or a post-judgment application because parents would be able to live in relative close proximity to one another and cooperate for the best interests of their children. This arrangement would provide access to each parent on a regular basis which advances this State’s public policy of looking out for the overall well-being of the children residing in this State. Unfortunately, this perfect world scenario is becoming less attainable with regards to divorcing parents as the multitude of reasons for relocation continue to grow and become more attainable in a global economy where travel has become more affordable and seamless and economic factors impact where parents want or need to reside. In addition, advances in technology have allowed for countless opportunities to remain in contact and communication with one another regardless of the distance between the parties. For example, there are now a multitude of relatively inexpensive means of face-to-face communication, regardless of where the two communicants are located. Accordingly, distance is becoming less and less of an obstacle for parties to remain in constant contact and communication with one another.
With that said, a decision by a custodial parent to relocate away from the State of New Jersey with the parties’ child is not an automatic guarantee. Pursuant to New Jersey statute, N.J.S.A. 9:2-2, “When the Superior Court has jurisdiction over the custody and maintenance of the minor children of parents divorced, separated or living separate, and such children are natives of this State, or have resided five years within its limits, they shall not be removed out of its jurisdiction against their own consent, if of suitable age to signify the same, nor while under that age without the consent of both parents, unless the court, upon cause shown, shall otherwise order. . .”. The purpose of this statute is to preserve the rights of the noncustodial parent. Based upon the logical conclusion that a relocation by the custodial parent will inherently affect the non-custodial parent’s visitation rights, the requirement that the custodial parent show cause for the relocation was adopted under this statute.
One of the initial questions to answer when faced with a parent’s desire to relocate with the child to another state is whether the parent seeking to relocate has primary residential custody. In determining what standard to apply, the court would need to know whether one parent is the “primary caretaker”, in which case the application is analyzed as a relocation case under the standards further described herein. If, however, the parents have a shared 50/50 parenting time arangement, such an application may be considered an application to change custody, which is analyzed under a different standard. O’Connor v. O’Connor, 349 N.J. Super. 381 (App.Div. 2002). In an initial custody determination or a modification of custody determination, the child’s best interests are central to the inquiry. In a removal case, the parents’ interests are also considered. As noted by the New Jersey Supreme Court, there is a “fundamental tension that exists in a removal case: the interests of the custodial parent in self-governance are pitted against the interests of the noncustodial parent in maintaining his or her relationship with the child.” Baures v. Lewis, 167 N.J. 91, 110 (2001). Thus, in a removal case, “although the parties often do not seem to realize it, the conflict in a removal case is not purely between the parents’ needs and desires. Rather, it is a conflict based on the extent to which those needs and desires can be viewed as intertwined with the child’s interests.” Id.
Historically, the case law in this State somewhat disfavored allowing a custodial parent to relocate out of New Jersey with the children. Years ago, cases such as Cooper v. Cooper, 99 N.J. 42 (1984) and Holder v. Polanski, 111 N.J. 344 (1988), required the custodial parent to show a “real advantage” moving the parties’ children out of state. Once that initial threshold had been met, the courts were then required to focus on three factors to determine whether or not the relocation would be allowed: (1) prospective advantages of the move in terms of its likely capacity for either maintaining or improving the general quality of life of both the custodial parent and the children; (2) the integrity of both the custodial parent’s motives in seeking the move and the non-custodial parent’s motives in objecting to the move; (3) whether a realistic and reasonable visitation schedule can be reached if the move is allowed. Subsequent to these decisions, the standard of relocation has shifted.
The Supreme Court of New Jersey in Baures v. Lewis, 167 N.J. 91 (2001), established the current test for removal applications, which makes the burden of proof on the custodial parent less onerous. Currently, a custodial parent seeking to relocate out of New Jersey with the parties’ children must provide enough evidence to meet a threshold showing that there is (1) a good faith reason for the relocation and (2) that the move will not be inimical to the child(ren)’s best interests. The Supreme Court acknowledged that this burden is less onerous on the custodial parent than previously required in Cooper and Holder. Id. at 118. Under Baures, the Supreme Court of New Jersey identified twelve (12) factors that the family court must consider when determining whether one parent may relocate with the parties child outside of New Jersey: (1) the reasons given for the move; (2) the reasons given for the opposition; (3) the past history of dealings between the parties insofar as it bears on the reasons advanced by both parties supporting and opposing the move; (4) whether the child will receive educational, health and leisure opportunities at least equal to what is available here in New Jersey; (5) whether any special needs or talents of the child that require accommodation or its equivalent is available in the new location; (6) whether a visitation and communication schedule can be developed that will allow the non-custodial parent to maintain a full and continuous relationship with the child; (7) the likelihood that the custodial parent will continue to foster the child(ren)’s relationship with the non-custodial parent if the move is allowed; (8) the effect of the move on extended family relationships here and in the new location; (9 )if the child is of age, his or her preference; (10) whether the child is entering his or her senior year in high school at which point he or she should generally not be moved until graduation without his or her consent; (11) whether the non-custodial parent has the ability to relocate; and (12) any other factor bearing on the child’s interest. Id. at 116-17.
Under Baures, if the custodial parent can meet his/her burden, then the burden of proof shifts to the non-custodial parent to show that the request to relocate is either in bad faith, or that the relocation would be inimical to the child’s best interests. The non-custodial parent could, for example, establish that the request to relocate is a pretext for the custodial parent to inferere in the relationship between the non-custodial parent and the child. The non-custodial parent could establish that a relocation would be inimical to the child’s best interest by demonstrating, for instance, that the child would lose close contact with other family members in New Jersey, or that the child’s educational and/or medical needs would not be met by a relocation. There are numerous ways that the non-custodial parent could address the fact sensitive aspects of the case to oppose relocation. The key change in the Baures decision from our prior case law, as specifically highlighted by the Supreme Court, was the fact that a mere change in the non-custodial parent’s parenting time schedule, even a reduction in parenting time, may not be alone enough to deny the custodial parent’s request to relocate. This is because the potential change in the non-custodial parent’s parenting time schedule is one of numerous factors for a court to consider.
It is important to keep in mind that parents are always able to come to their own agreement on this issue and determine what is in the best interest of the children. If that is not feasible under the given circumstances of a case, then there are procedures and standards in place for the parties to make their respective applications to the Court with regard to relocation. Such pleadings by either parent need to be well thought out, organized, and as detail specific as is feasible with all necessary proofs in order for the Court to render a decision. The decision as to whether the children may relocate has significant impact on the lives of children and their parents.
The Law Office of James P. Yudes, P.C. have long handled all matters of custody, parenting time, and relocation applications, and our attorneys are ready to assist in any and all of your custody, parenting time, and relocation needs, regardless of whether you are the custodial or non-custodial parent.