One of the most challenging issues that family law attorneys face occurs when a parent wishes to physically relocate a child outside of the State of New Jersey. This desire often becomes a hotly contested issue due to the fact that a parent cannot relocate outside the State with an unemancipated child, without consent of the other party or an Order of the Court.
If the issue of moving a child out of state cannot be settled between the parties through a consent agreement, the first factor that needs to be examined is the actual physical custodial relationship between the child(ren) and the parents.
This distinction is important because our case law differentiates between a relocation scenario in which the parents exercise a shared parenting arrangement vs. a custodial relationship in which one parent is responsible for the majority of the child rearing responsibilities. This classification is critical in establishing the legal burden that each party may have to overcome (or defend) when preparing a relocation case.
If there is a true shared parenting arrangement,the parent seeking to relocate has the initial burden of showing changed circumstances sufficient to warrant a change in custody. The parent seeking relocation also has the burden of showing that the relocation is in the bests interest of the child. This test focuses solely upon an analysis of the best interest of the children, regardless of the applicant’s good faith motivation to relocate. In such instances, “the party seeking the change in the custodial relationship must demonstrate that the best interests of the child(ren) would be better served by the residential custody being vested primarily with the relocating parent.”
If the custodial parent asking for relocation after divorce outside of the State of New Jersey, that parent has a burden to initially produce evidence to the court that (1) there is a good faith reason for the requested move and (2) that the move will not be inimical to the child’s interest. While not an identified prong, it is required that a good faith parenting plan be submitted regarding the non-moving parent’s rights to visitation with the children.
Once the custodial parent has presented evidence regarding the good faith reason for the move and it is forwarded that the move will not be inimical to the child’s interest, the burden of going forward then shifts to the non-custodial parent who must produce evidence opposing the move.
Regardless if you are the party requesting or defending against a proposed relocation after divorce with children, our Supreme Court has identified factors that must be examined in the context of the whether the move is inimical to the child’s interest. The Court set forth twelve factors that are relevant in deciding whether or not relocation is appropriate. Some highlighted factors include the reason for the move and for opposition to the move; the health, education, and other needs of the child and whether those needs can be equally met in the new location; whether visitation and communication schedules can be developed to permit a full and continuous relationship with the non-custodial parent; the effect of the move of extended family members of the parties and the likelihood that the custodial parent will continue to foster the non-custodial parent’s relationship.
Due to the “all or nothing” nature of a relocation request, this type of litigation creates a unique set of circumstances that often requires judicial intervention. As a practical tip, it is important from the outset that a party makes their intentions clear regarding their relocation plan or opposition. Proper preparation and attention to detail is necessary to effectively prepare your case to meet the criteria and factors set forth by the controlling case law.