Can You Stay Or Can You Go? Considerations In New Jersey Related To Relocating With Children

Can You Stay Or Can You Go? Considerations In New Jersey Related To Relocating With Children
Town Topics, Princeton, N.J., Wednesday, July 2, 2008

The decision of a custodial parent to relocate implicates several important legal issues. This article is a general overview of some of those issues. The effect of a proposed move on the life of the child, as well as his or her relationship with the non-custodial parent are compelling concerns. In turn, the personal autonomy of the custodial parent, and his or her ability to pursue opportunities risks being subordinated to the proposed relocation. In general, the factors weighed by New Jersey Courts in reconciling contested relocations include:

• The good faith reasons given for the relocation;

• The underlying reasons given for opposing the relocation;

• The specific circumstances of the case and the extent to which they speak to the motivation of each parent in requesting or opposing the relocation;

• The potential benefits to the child resulting from the relocation (educational, social, psychological, health, etc.);

• Unique requirements of the child that would be accommodated by the relocation;

• The ability to maintain a meaningful relationship between the child and non-custodial parent either through the development of a parenting time schedule or alternate means of communication (telephone contact, email, etc.);

• The willingness of the custodial parent to support the relationship between the child and non-custodial parent after relocating;

• The extent to which the relocation will inhibit or enhance the relationship between the child and extended family;

• The ability of the non-custodial parent to relocate and/or maintain the parenting time he or she enjoyed with the child prior to the proposed relocation;

• The current/immediately ensuing grade of the child in school (if the child is a senior of close to graduation then relocation is not preferable);

• The preference of the child if he or she is of appropriate age to warrant consideration; and

• Any other factors relevant to the best interests of the child.

An ultimate determination under these factors is based on the court’s weighing of the factors against the totality of the circumstances of a given case.

Relocation contests are typically resolved by a plenary hearing. However, the holding of a plenary hearing is not an absolute rule. Some applications and may be decided without a trial when the proposed move supported by the evidence already on record, such as in court pleadings where there are no contested issues of material fact. Regardless of the means by which a court decides on a proposed relocation, due consideration is given to each of the above factors. In cases involving plenary hearings, experts (either appointed by the court or privately hired by the parties) likely will interview both the child and parents. They will consider the impact of the proposed relocation on the child. If necessary, a court will appoint additional professionals to safeguard the rights of the child, whether in the form of a Guardian Ad Litem or law guardian.

An exception to the application of the above factors occurs when the timing of a proposed relocation comes simultaneously with an initial a custody determination, or, in some cases, proximate thereto. When a proposed relocation outside of New Jersey is made with an initial determination of custody (e.g., at the time of divorce), then the court weighs the proposed relocation as a part of its decision in awarding which parent has primary physical custody of the child or children. When an application to relocate is made shortly after the initial custody determination, the court has the ability to revisit the issue of custody if it deems appropriate to do so. The end result being that a higher burden is imposed on the parent seeking the relocation either upon the initial custody determination or, potentially, soon thereafter.

It is important to note that this applies to proposed relocations outside of New Jersey. Accordingly, a custodial parent generally has the ability to relocate within the state even if the move is opposed by the non-custodial parent. For example, a custodial parent may wish to relocate with children from Northern New Jersey to Long Island. This proposed relocation would trigger the balancing test and consideration of the above factors. However, should the proposed relocation be to Southern New Jersey (or a destination within the state significantly farther than the latter to New York), there is no such inquiry to be conducted when the crossing of state lines is involved.

The same issues can impact a family when a custodial parent wishes to relocate either within New Jersey or to another state. A proactive way to address this issue is to include provisions in agreements between parents regarding each parent’s expectations as to where the child or children will reside. The inclusion of issues related to relocation benefits all parties by defining their rights prior to problems that may arise.

Relocating with a child can be a complex undertaking, and this article offers only a general review of some related issues. Consulting with an experienced family law attorney with knowledge of relocation issues should be done to gain an understanding of the specific issues related to a particular case.