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By New Jersey statute, where the Superior Court “has jurisdiction over the custody and maintenance of parents divorced, separated or living separate” and where such children “are natives of this State, or have resided five years within its limits,” neither parent may remove them from the State without the consent of the other parent or leave of court (See N.J.S.A. 9:2-2). In adjudicating requests by parents to relocate with their children, applications which judges notoriously find difficult, the standard to be applied depends on the custodial arrangement exercised by the parties.
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Where one parent is clearly the primary residential custodian, the Court will apply the standard as articulated by the Supreme Court of New Jersey in Baures v. Lewis, 167 N.J. 91 (2001). Pursuant to same, the custodial parent seeking to move has the initial burden to demonstrate “that there is a real advantage to that parent in the move and that the move is not inimical to the best interests of the children.” Id. at 111.
Once this initial burden is satisfied, the burden then shifts to the noncustodial parent “who must produce evidence opposing the move as either not in good faith or inimical to the child’s interest.” Id. at 119. In making these determinations, the Baures Court further articulated a number of factors to be considered.
These factors include:
- The given motives behind the proposed move
- The reasons the opposing parent is against the move
- The past history between the two parents and how it may relate to the relocation dispute
- The educational, healthcare, and recreational resources the child may have as a result of the move
- The capacity the new location has to accommodate any of the child's special needs or interests
- The ability the non-custodial parent will have maintain their relationship with child if the move happens
- The likelihood that the custodial parent will foster the child’s relationship with the other parent if the move happens
- The potential effect the move will have on the child's relationships with extended family members
- The child's preference (if they are old enough)
- The child's current proximity to their high school graduation
- The non-custodial parent's ability to relocate
- Any other factor the court finds relevant to the child's best interests
Id. at 117. “Obviously not all factors will be relevant and of equal weight in every case.” Id.
When There Is Joint Custody
Conversely, where “the parents truly share both legal and physical custody, an application by one parent to relocate and remove the residence of the child to an out-of-state location must be analyzed as an application for a change of custody where the party seeking the change in the joint custodial relationship must demonstrate that the best interests of the child would be better served by residential custody being primarily vested with the relocating parent.” O’Connor v. O’Connor, 349 N.J. Super. 381, 385 (App. Div. 2002).
As set forth in the decision of Shea v. Shea, 384 N.J. Super. 266, 271 (Ch. Div. 2005), the best interests standard will also be applied in cases where there is a primary residential custodian but the request for removal “comes shortly after the settlement of the Final Judgment of Divorce, and the material facts and circumstances forming the good faith reason for the removal request were known at the time of the entry of the final judgment.” In such a circumstance, the party opposing the relocation is afforded the opportunity to be “restored to the position he or she held prior to the Final Judgment of Divorce” as to rule otherwise “could potentially encourage disingenuous settlements” or encourage parties to use the above-referenced Baures standard as a “sword”. Id.
Divorce Settlements & Relocation
Where parties have included language in their settlement agreement precluding relocation, the parent seeking to move with the children must demonstrate “a substantial unanticipated change in circumstances warranting avoidance of the agreed-upon relocation provision” in order to benefit from the more lenient Baures standard. If they fail to demonstrate same, the best interests standard will be applied. See Bisbing v. Bisbing, 445 N.J. Super. 207, 213-214 (App. Div. 2016).
No matter what your relocation circumstances are or what side of this family law matter you are on, Ziegler, Resnick & Epstein can help. Call today to request an initial case evaluation.
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