A Nuts and Bolts Review of New Jersey Relocation Law – Are We There Yet?October 3, 2016 The New Jersey Law Journal
In many divorce and post-divorce custody and parenting time disputes, one of the most potentially contentious areas of dispute involves a parent's request to relocate with the children. Characterized as often resulting in emotionally "heart-wrenching" decisions, relocation requests are analyzed under different legal standards depending on: (1) the existing custody arrangement; (2) whether the requested move is intrastate or interstate; (3) whether there exists a written agreement between the parties regarding relocation; and (4) whether the requesting party is acting in good faith. Understanding the law and its nuances can greatly aid litigants and practitioners in what may become a highly protracted litigation involving parents, children and experts to determine whether the relocation should occur.
Generally, a parent with primary physical custody of the child can decide to relocate within New Jersey without the noncustodial parent's authorization because, according to the Appellate Division's decision in Schulze v. Morris, 361 N.J. Super. 419, 426 (App. Div. 2003), moving intrastate is not actually viewed as a form of relocation. This conclusion also comports with the language contained in New Jersey's anti-removal statute. N.J.S.A. 9:2-2. In fact, the custodial parent is not required to file a motion for permission to relocate within New Jersey. To the contrary, the opposing parent must file a motion and successfully establish that the move presents a "substantial change in circumstance" harmful to his or her relationship with the child, or contrary to the child's best interests. See id. While the opposing parent will not likely be able to block the move, it may necessitate a review of the custody and time-sharing arrangement.
N.J.S.A. 9:2-2 provides that a child of parents "divorced, separated or living separate," where the children are "natives" of New Jersey, or have resided for five years within its limits, shall not be removed from the state "against their own consent, if of suitable age to signify the same, nor while under that age without the consent of both parties, unless the court, upon cause shown, shall otherwise order." As a result, a parent seeking to relocate interstate with a child must procure either the other parent's consent or a court order allowing the move.
To determine what legal standard applies when faced with such an application, the first step "considers the type of parenting arrangement between the parties and whether the matter is actually an application for a change in custody as opposed to a removal case." Morgan v. Morgan,205 N.J. 50, 64 (2011).
If the primary custodial parent's motion is truly one for removal, whereby there does not exist a joint residential custody arrangement, then the factors applied are those enunciated by the Supreme Court of New Jersey in the seminal Baures v. Lewis, 167 N.J. 91 (2000). There, the court concluded that the custodial parent must prove the relocation request is based on a good faith reason and the move itself is not inimical to the child's best interests. The factors considered are as follows:
- 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 reason advanced by both parties for supporting and opposing the move;
- Whether the child will receive educational, heath and leisure opportunities equal to what 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 noncustodial parent to maintain a full and continuous relationship with the child;
- The likelihood the custodial parent will continue to foster the child's relationship with the noncustodial 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 the point which he or she should generally not be moved until graduation without his or her consent;
- Whether the noncustodial parent has the ability to relocate, and
- Any other factor bearing on the child's interest.
While the custodial parent's burden may seem daunting, it actually favors a primary caretaker's ability to relocate with the child, even outside of its own borders, for reasons based on psychological studies, common sense and public policy.
In a situation where the parents "truly share both physical and legal custody," however, the analysis no longer favors one parent over the other since the application is really one for a change in custody. As a result, the "best interests of the child" is the core concern. O'Connor v. O'Connor, 349 N.J. Super. 381 (App. Div. 2002).
Acknowledging the presumptive favoritism afforded the custodial parent under the Baures analysis, and in an effort to procure the more balanced "best interests" standard, a noncustodial parent may argue that a de facto joint residential custody arrangement exists. Notably, New Jersey courts have expressed that true joint residential custody arrangements are rare.
Rather than incur the substantial cost of proceeding through a best interests evaluation and having a trial judge render an initial custody determination, parents often amicably resolve the issue and, in so doing, include language in their divorce or custody agreements addressing the issue of a potential future relocation. To that end, the Appellate Division's recent decision in Bisbing v. Bisbing, 445 N.J. Super. 207 (App. Div. 2016), emphasizes the potential impact and enforceability of anti-removal language. The decision addressed both the conduct of the party requesting relocation in agreeing to the anti-removal language, and the resulting legal standard that will apply, specifically holding that the party requesting removal can only receive the "benefit" of the Baures standard if he or she was found to have negotiated the agreement's anti-removal language in good faith, and proved a substantial unanticipated change in circumstances "warranting avoidance" of such language. Otherwise, the "best interests" standard will apply.
Similarly, in Shea v. Shea, 384 N.J. Super. 266 (Ch. Div. 2005), the noncustodial parent accused the custodial parent of manipulating the Baures standard by settling the divorce and, immediately thereafter, filing for removal to procure the more favorable burden of proof. The court found a plenary hearing was necessary to determine if such manipulation occurred and, if so, determined that the "best interests" standard should apply, rather than that set forth in Baures.
In late 2015, the Senate introduced new legislation titled the New Jersey Relocation of Children Act, which codifies the legal standard to apply when seeking removal under N.J.S.A. 9:2-2 and touches upon many areas previously addressed in relocation-related jurisprudence. Perhaps the most important component of the pending bill is its modification of the Baures factors "by placing greater emphasis on the needs of the child." Senate No. 1137 (Primary Sponsor Senator Christopher Batemen and Co-Sponsor Senator Loretta Weinberg), Assembly No. 339 (Primary Sponsor Troy Singleton). In so doing, the bill mandates use of the "best interests" standard in all removal matters and notes that "No presumption shall be made in favor of or against relocation of the child." At this juncture, each form of the bill has been referred to the respective judiciary committees.
With advances in societal mobility, ongoing research regarding the impact of relocation on children, and more, it is clear that recently decided case law and pending legislation are not the end of the relocation story. As with most areas of family law practice, trial judges will be called upon to analyze very fact-specific scenarios to determine the right result within the confines of the law as it develops over time.•
Reprinted with permission from the October 3 issue of The New Jersey Law Journal. (c) 2016 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.