Phillips Nizer LLP | Sophisticated Legal Service | Relocation Out Of State With A Child During Or After Divorce, As Seen in the <em >Hunterdon County Women’s Journal (Dec 2003)</em ><br > Jan L. Bernstein
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Relocation Out Of State With A Child During Or After Divorce, As Seen in the Hunterdon County Women’s Journal (Dec 2003)
Jan L. Bernstein

Often during the pendency of a divorce or custody litigation, or sometimes even long after a final divorce or custody determination is made, one parent seeks to relocate out of state with a child for what can be a myriad of reasons, such as a job transfer, a desire or financial need to be close to extended family, or remarriage. Such a request often flames emotional fires. In such instance, and barring consent of the other parent to permit the relocation, a court must make the determination as to whether a relocation out of state with the child should be permitted. While, in some cases, relocation within the state is being argued, this article will focus on out of state relocation.

Whether a court will permit such relocation with a child depends on various factors. However, it is the balance between protection of the relationship between the parent and child and the right of a parent to freely move about the country after a divorce or separation, which is at the crux of the relocation debate. How a court views and analyzes such a request depends greatly upon the existing custodial arrangement between the parents and the stage of the divorce litigation.

The State of New Jersey has long protected the right of the child to have and maintain a relationship with both parents after a separation or divorce. Our custody statute specifically requires the preservation of both relationships. Having said that, the following issues are present when relocation is requested.

What Is The Existing Custodial Arrangement?
The first step in any relocation analysis is a determination of what the present custodial arrangement between the parents is or should be. If there is no final agreement or judgment of custody at the time the request for relocation is made, a court must first make a custody determination before considering the relocation request. In making a custody determination, a court is guided by the best interests of the child, which includes a consideration of such factors as:
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 its parents and siblings; the history of domestic violence, if any; the safety of the child and the safety of either parent from physical abuse by the other parent; the preference of the child when of sufficient 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; and the age and number of the children. A parent shall not be deemed unfit unless the parents’ conduct has a substantial adverse effect on the child.1
In determining what is in a child’s best interests, New Jersey courts have stated that the “paramount consideration is the safety, happiness, physical, mental and moral welfare of the child” and such courts have determined that neither parent has a superior right to custody, and that each case must be decided on its own facts and circumstances.2

If the parents already have reached a final agreement or a court has entered a final judgment of custody on the issue of custody of the child, then a court must look to that agreement as a starting point for any relocation analysis.
Joint Physical Custody
What Is Joint Physical Custody? The New Jersey Supreme Court has defined joint physical custody as “joint ‘responsib[ility] for ‘minor’ day-to-day decisions’ and the exertion of continuous custody by both parents over a child for significant periods of time.”3 That Court further stated that joint physical custody can arise in various forms of time-sharing arrangements, such as, “three entire days with one parent and four entire days with another parent or alternating weeks or even years with each parent...joint physical custody’ means that the child lives day in and day out with both parents on a rotating basis. Numerous ‘parenting times’ with a child do not constitute joint physical custody.”4  In the event that the parents have a joint physical custody arrangement, then a court must not engage in a true “relocation” analysis (as defined further below); rather, a change of custody analysis which focuses on a traditional best interest standard, as defined above.
Sole Physical Custody/ Parent of Primary Residence
What is Sole Physical Custody/Parent of Primary Residence? The relocation analysis is quite different if a court finds that a sole physical custody arrangement exists or should exist. The New Jersey Supreme Court has defined a sole physical custody arrangement as one in which, “[a]lthough both roles [that of primary and secondary caretaker] create responsibility over children of divorce, the primary caretaker has the greater physical and emotional role.”5  In such an instance where a sole physical custody arrangement exists, a court shall not utilize a best interest standard in determining a request for relocation; rather, it is guided by a two-prong test established by the New Jersey Supreme Court. A court must first determine whether the request to relocate is made in good faith and for good cause, rather than intended solely to frustrate the parental rights of the other parent. If the parent seeking to move can meet this initial burden, then, in order to prevent the relocation, the parent opposing the move must prove the second prong of the test, namely, that the move would be inimical to the child’s best interest, i.e., would cause detriment to the child.6  The New Jersey Supreme Court in a recent decision7, specifically defined the course for a court to follow in a relocation application as being, “The critical path to a removal disposition therefore is not necessarily the one that satisfies one parent or even splits the difference between the parents, but one that will not cause detriment to the child.” In the determination as to whether a relocation will be detrimental to a child, a court must consider the following factors:
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 reasons advanced by both parties for supporting and opposing the move
  • Whether the child will receive educational, health and leisure opportunities at least 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 communications schedule can be developed that will allow the non-custodial parent to maintain a full and continuous relationship with the child
  • The likelihood that the custodial parent will continue to foster the child’s relationship with the non-custodial 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 which point he or she should generally not be moved until graduation without his or her consent
  • Whether the non-custodial parent has the ability to relocate
  • Any other factor bearing on the child’s best interest 8
Consideration and analysis of all of the above factors will be made by a court after a hearing at which testimony of the parties and, often, psychological/custody experts, is given.

As with most trends, legal standards change over time and the consideration of requests for relocation is no different. Whether you request permission to move or wish to oppose your child moving out of state, you should consult an attorney since every case is, truly, different.
1.         N.J.S.A. 9;2-4
2.         Fantony v. Fantony, 21 N.J. 525, 536-37 (1956)
3.         Pascale v. Pascale, 140 N.J. 583, 596 (1995)
4.         Pascale v. Pascale, 140 N.J. 583, 596 (1995)
5.         Id. at 598
6.         Holder v. Polanski, 111 N.J. 344 (1988).
7.         Baures v. Lewis, 167 N.J. 91, 115-116 (2001)
8.         Id.