Ask the Lawyer: Can a Divorced Parent Move Out of State With a Child?

Q. Now that I am divorced, can I move out of New Jersey with my child?

A. In today’s very mobile society, situations often arise where one parent seeks to permanently relocate with a child out of New Jersey. Although this issue can arise before a divorce is finalized, the situation most often arises after the divorce proceedings have been concluded and was not an issue that was contemplated at the time of divorce. A parent may seek to relocate for any number of reasons; i.e., to accept new employment, to seek financial or emotional support from extended family, to pursue educational opportunities,
for remarriage, etc.

Under New Jersey law, a child’s permanent out-of-state relocation is only permitted where both parents consent or, if there is no agreement, by court order. In the event there is no agreement, the court is charged with the responsibility of formulating a decision based upon principles established by the state’s case law set forth in prior precedent-setting rulings.

The initial question the court must answer is whether the custodial relationship between the divorced parents establishes one parent as the primary caretaker and the other as the secondary caretaker. Should the court determine that the divorced parents have established true shared physical custody, with the parents equally sharing the child’s time and other obligations, the court will view a relocation application as an application for a change of custody, utilizing a
“best interests” standard.

In the more typical situation, however, the court will determine that the parents’ custodial arrangement establishes one parent as the primary caretaker and the other parent as the secondary caretaker. In this situation, the request to relocate must be analyzed utilizing the standards set forth by the New Jersey Supreme Court in the case of Baures v. Lewis. Under Baures, the parent seeking to relocate with the child must provide sufficient evidence to show that there is a “good faith” reason for the move and that the move will not be “inimical” to the child’s interest. The parent seeking approval for the relocation must also propose a specific parenting time schedule which would be implemented upon relocation. This initial burden will likely not be particularly difficult to establish.

In the event the parent seeking the relocation can meet these two requirements, the burden then shifts to the parent opposing the move to provide the court with evidence to demonstrate that the move is not being made in good faith or that the proposed move is contrary to the child’s best interest.

The opposing parent may challenge the relocation by, for example, demonstrating that the proposed move is designed to stymie the parent’s relationship with the child or that the proposed move is being made out of spite or other bad motive. Where the issue becomes one focused on parenting time, however, in order to defeat the custodial parent’s proofs, the burden will be on the noncustodial parent to produce evidence, not simply that the parenting time will change (which it certainly will), but that any such change will negatively affect the child.

In order to guide our courts, Baures provides twelve factors which the court must
consider when assessing a relocation application. These factors include the following:

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.

An important lesson learned from Baures is the importance of both parties’ efforts to create an alternative parenting plan to assess the additional physical separation between the noncustodial parent and the child after a relocation. In today’s technology driven environment, creative means of promoting visitation are being established.

Tools such as e-mail, instant messaging, Skype, webcams, etc. can expand the noncustodial parent’s ability to maintain meaningful contact and parenting time with a child, even if the child is permitted to relocate out of New Jersey. More traditional parenting time, to include extended school breaks and vacations, will also continue to be important considerations.

Courts will focus upon whether that type of communication and parenting time is sufficient enough to maintain and nurture the important relationship between the noncustodial parent and the child.

Before seeking to permanently relocate out of New Jersey with a child, it is highly
recommended that careful thought and analysis be given to the standards outlined in the Baures case. Relocation cases can be legally challenging and hotly contested. Detailed analysis and preparation is the key to establishing a foundation upon which a parent’s request for relocation can be given the best chance of success.

Leif M. Nissen is an attorney in the Family and Matrimonial Services Department of Archer & Greiner P.C. in Haddonfield, where his comprehensive family law practice encompasses dissolution of marriage, alimony, custody and parenting time, adoption, child support, equitable distribution of property, domestic violence, pre-marital agreements, and pre-divorce and post-judgment motion practice.

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