By Tadd Yearing, Esq.
As society has become increasingly more mobile, more than ever people are moving to take advantage of work or education opportunities, for lifestyle, or because they have remarried, among a host of other reasons. Not uncommonly, these moves are often to a new state. When the individual wishing to move is divorced with children, and where they are the primary parent or custodian, this desire takes on a special importance as one generally cannot up and move without consent from the other parent or court approval.
Custodial parents have long had a right to relocate, however. But the difficulty has always been balancing the needs and desires of the parent wanting to relocate with those of the other parent, as well as accounting for the best interests of the subject children. Baures v. Lewis, 167 N.J. 91, 115 (2001) (noting that the conflict can be viewed as between the parties’ needs and desires as intertwined with the child’s interests) (emphasis added).
Critically, in Baures, supra., the New Jersey Supreme Court declared that, “social science research has uniformly confirmed the simple principle that what is good for the custodial parent is good for the child” and that “[w]hat it does not confirm is that there is any connection between the duration and frequency of visits and the quality of the relationship of the child and the non-custodial parent.” Id. at 106-107.
With that as a backdrop, it is important to understand that the custodial parent seeking to relocate out-of-state bears the initial two-pronged burden of 1.) presenting a sufficient initial showing of evidence to establish that a good faith reason for the move exists and 2.) that the move will not be inimical to the child’s interests.
In assessing the above threshold questions, the courts have delineated the following factors for consideration:
(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 noncustodial 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 noncustodial 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, at which point he or she should generally not be moved until graduation without his or her consent;
(11) whether the noncustodial parent has the ability to relocate;
(12) any other factor bearing on the child’s interest.
Baures, supra., at 118.
Once a sufficient showing has been made, the burden shifts to the noncustodial parent, who, in order to defeat the relocation request, must produce evidence opposing the move as either not in good faith or inimical to the best interests of the child. After the noncustodial parent has gone forward, the moving party may rest or adduce additional evidence regarding the noncustodial parent’s motives, the visitation scheme, or any other matter bearing on the application.
As with most areas of family law, such determinations are highly fact sensitive. The cases often will include the reports of custody experts to opine on the move’s potential impact on the children. This can be financially burdensome to the parties, as well as stressful for the children involved. Nevertheless, as the case law makes clear, “[t]he custodial parent who bears the burden and responsibility for the child is entitled, to the greatest possible extent, to the same freedom to seek a better life for herself or himself and the children as enjoyed by the noncustodial parent.” Id. at 110 (citing Cooper v. Cooper, 99 N.J. 42, 55 (1984)).