Children Relocation in New Jersey
It is not uncommon that a parent will one day want to move out of New Jersey with the parties’ child. Sometimes, the non-custodial parent will simply consent to the move, allowing the custodial parent to freely move, under N.J.S.A. 9:2-2.
Probably and more likely, however, the non-custodial parent will not consent to the out-of-state move, obligating the custodial parent to obtain a court order to permit the relocation. This is not an easy task and the custodial parent will, ultimately, have to show that the proposed move is in the child’s best interests. How exactly does the custodial parent do that?
The Relocation Process in New Jersey
Out-of-state relocation is a very sensitive issue that courts do not take lightly. The stakes are high for both parents, in addition to the child. The non-moving parent can become greatly prejudiced by having his or her access to a child become much more limited. If there is a current parenting time arrangement in place, it is likely that the non-custodial parent’s parenting time will be adversely affected by the custodial parent’s contemplated out-of-state move.
This stressful situation poses a number of issues for the custodial parent, the non-custodial parent, and the child. On the one hand, the custodial parent has the right to try to live in a place she feels is most beneficial for her and the child. On the other hand, the non-custodial parent has an interest in seeing his child with as minimal inconvenience as possible. If a non-custodial parent has, for example, some mid-week parenting time, it can become costly or outright impossible to exercise that parenting time if the custodial parent and child are states away.
We know that New Jersey courts hold the best interests of the child above all else when considering nearly all aspects of custody and parenting time. Yet, determining what is the best interests of the child in a relocation case can be very complex. Moreover, courts also have to consider those best interests with the interests of both parents. These are very tough situations for family judges, as it is often that one parent is going be significantly and negatively affected – either the custodial parent will not be able to move to a place she feels is best for them (whether it be for a job, to be closer to family, etc.), or the non-custodial parent is going to have much more limited access to his child.
N.J.S.A. 9:2-2 states:
“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 court, upon application of any person on behalf of such minors, may require such security and issue such writs and processes as shall be deemed proper to effect the purposes of this section.”
It is what constitutes “cause” that New Jersey courts have struggled with for years. Recently, the New Jersey Supreme Court overturned a previous standard, which was also set by the Supreme Court, of what could be defined as “cause” under this statute.
Baures v. Lewis
The standard for assessing cases of child relocation in New Jersey has undergone a significant transformation recently.
The previous standard came out of the state Supreme Court case, Baures v. Lewis.
Prior to Baures, the relocation standard had been analyzed in the Supreme Court on multiple occasions. The general approach before Baures was to analyze how the proposed move would affect just the child. Baures later directed that if trial courts determine that the relocation-seeking parent is the custodial parent, that parent must establish that the proposed move is in good faith and not inimical to the child’s interest. If the court determined that there was a shared-custody arrangement, the court must determine whether there are changed circumstances and then conduct a best interests analysis.
Baures arrived at its standard, one that was fairly easy for a custodial parent to meet, largely due to its reliance on relevant social science research at the time. The general conclusion of this research was that what was good for the custodial parent was usually good for the child. The court also enumerated twelve factors that should be considered in its analysis:
(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 for supporting and opposing the move;
(4) whether the child will receive educational, health and leisure opportunities at least equal to what is available here;
(5) any special needs or talents of the child that require accommodation and whether such 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’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;
(11) whether the non-custodial parent has the ability to relocate;
(12) any other factor bearing on the child’s interest.
Bisbing v. Bisbing
The precedential 2017 case, Bisbing v. Bisbing, completely changed the relocation standard. In the wake of Baures, concern was growing in the family law community that parents may negotiate custody agreements in bad faith. As discussed, Baures made it much easier for a Parent of Primary Residence (PPR) to be awarded the right to relocate than a parent exercising shared parenting time.
Many family lawyers feared that many parents negotiating for PPR would do so because they contemplated a prospective out-of-state move, of which they would not disclose to the other parent during negotiations. The Bisbing Court was suspicious that this was what happening in the instant case.
Like Baures, Bisbing cited social science studies. However, these studies reached largely inconsistent conclusions about whether what was good for the custodial parent was good for the child. Bisbing ultimately decided to follow most other states in adopting a best interests standard for assessing relocation, regardless of whether there was a presence of shared custody or a custodial parent. Bisbing further discredited Baures by pointing out that the “growing trend” Baures claimed existed towards favoring the custodial parent did not in fact actually happen across most of the country.
Bisbing, therefore, mandated that in cases of children relocation in New Jersey, trial courts must consider the best interests factors enumerated in N.J.S.A. 9:2-4, the same factors used in determining the optimal custody arrangement for the child’s best interests:
- The parents’ ability to agree, communicate, and cooperate in matters relating to the child
- The parents’ willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse
- The interaction and relationship of the child with his or her parents and siblings
- Any history of domestic violence
- The safety of the child and the safety of either parent from physical abuse by the other parent
- The preference of the child, if of age, and capacity to reason so as to form an intelligent decision
- The needs of the child
- The stability of the home environment offered
- The quality and continuity of the child’s education
- The fitness of the parents
- The geographical proximity of the parents’ homes
- The extent and quality of the time spent with the child prior to or subsequent to the separation
- The parents’ employment responsibilities
- The age and number of the children
Courts, therefore, are now required to consider completely different factors in relocation cases than they previously had to under Baures. On its face, meeting the Bisbing “best interests” standard seems a tougher burden for the relocation-seeking parent than the previous Baures standard (if the relocation-seeking parent was the custodial parent in a pre-Bisbing scenario).
The case law is still developing in light of Bisbing, but some fear that parents will be “chained down” to New Jersey if they wish to retain residential custody of their children. However, it may also prove to be beneficial as more children will remain closer to both of their parents, which, in general, may be the best arrangement. It will be interesting to see what develops throughout the state in the wake of this new standard.
Contact The New Jersey Divorce Lawyers at Lesnevich, Marzano-Lesnevich, O’Cathain & O’Cathain, LLC
Considering the two cases above, it’s more important than ever to have an expert child custody lawer in New Jersey assist with your case. This is especially the case of relocation without consent, custody battles with DCPP is involved, custody of special needs children in divorces, and high income child support cases in New Jersey.
Although our goal is to resolve your case efficiently and amicably, our New Jersey divorce lawyers have years of experience trying divorce cases. We strive to make the trial process as simple as possible while zealously advocating for you and your positions.