Relocating Your Child
Pursuant to N.J.S.A. 9:2-2, once New Jersey has jurisdiction, if you want to move with your child to another state or country you need permission of the child’s non-custodial parent or you need a court order. The reason for this requirement is to maintain the non-custodial parent’s rights to have an ongoing relationship with the child.
Moving to another state:
In a case called Baures v. Lewis, 167 N.J. 91 (2001), the Supreme Court of New Jersey required that the custodial parent seeking removal of the child to prove that the move is in good faith (i.e. not merely to separate the child from the other parent) and that the move will not adversely affect the child. There are twelve factors that the court must consider in determining whether the custodial parent has proven those two things:
- The reasons given for the move;
- The reasons given for the opposition;
- The past history of dealings between the parties insofar as it bears on the reasons advanced by both parties for supporting and opposing the move;
- Whether the child will receive educational, health, and leisure opportunities at least equal to that which is available here;
- Any special needs or talents of the child that require accommodation and whether such accommodation or its equivalent is available in the new location;
- 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;
- The likelihood that the custodial parent will continue to foster the child’s relationship with the non-custodial parent if the move is allowed;
- The effect of the move on extended family relationships here and in the new location;
- If the child is of age, his or her preference;
- 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;
- Whether the non-custodial parent has the ability to relocate; and
- Any other factor bearing on the child’s interest.
After the parent seeking to remove the child from New Jersey has provided prima facie proof that the move is in good faith and is not inimical to the interests of the child, the court will hold a hearing to review the twelve factors. If the parent is unable to provide this prima facie proof, the Court may deny the move without a hearing.
The ultimate issue for the court is whether the move is inimical to the child. Prior to the hearing, there will be a discovery period. Often the court will require that a psychologist offer a recommendation regarding the impact on the child of moving. The fact that a move out of state will change the visitation schedule even lessening the visitation is not by itself a reason for preventing a move.
If the parent seeking to move proves that the move is in good faith and the move is not inimical to the child, the custodial parent will be allowed to move. However, the move is a change in circumstances that may require a change in the parenting time schedule (often the non-custodial parent will receive larger blocks of parenting time during the summer and school breaks) and may require a change in who is responsible for transportation/cost of transportation of the child.
Moving Within the State:
Under the current case law, a strong argument can be made that you do not need the court’s permission to move within the state of New Jersey. The case of Schulze v. Morris, 361 N.J. Super. 419, 426 (App. Div. 2003), held that the relocation within the State by a joint residential custodial parent does not constitute a removal action and therefore, does not require court approval for the proposed relocation. However, relocation to another in-state location "may constitute a substantial change in circumstances warranting modification of the custodial and parenting-time arrangement." Schulze, supra, 361 N.J. Super. at 426. Therefore, when moving to another part of the state, court approval is not needed, but where the move will have a significant impact upon the relationship between the child and the non-custodial parent, the Baures factors should be considered in determining whether modification of the custodial and parenting-time arrangement is warranted.
The family law team at Wilentz, Goldman & Spitzer serves New Jersey clients in Atlantic County, Bergen County, Burlington County, Essex County, Hudson County, Mercer County, Middlesex County, Monmouth County, Morris County, Ocean County, and Union County, in addition to serving clients in New York City.