In New Jersey, when a custodial parent wishes to relocate, there is a two-part test. He or she must provide a “good faith reason for the move” and show that “the child will not suffer from it.” This approach was outlined in the case of Baures v. Lewis, 167 N.J. 91 (2001). When using the two-part test, The Supreme Court of New Jersey set forth a twelve (12) factors that a court must consider. Those 12 factors 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 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 in the current location.
- 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 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 in the current location and in the new location.
- If the child is of a mature enough 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 interest.
Recently, the Supreme Court of New Jersey addressed relocation again when a divorced mother wished to move with her children from New Jersey to Massachusetts in Morgan v. Morgan (2011). Mother was engaged to be married to someone in Massachusetts and wanted to move there because it was her home state and where her extended family lived. Father opposed and during the five (5) years of litigation and trips to the Appellate Court and Supreme Court of New Jersey that followed, Mother’s engagement was eventually called off. In fact, during that time, Father remarried in New Jersey and had another child.
Ultimately, the N.J. Supreme Court found that the original trial court’s decision which prohibited Mother from relocating should be reversed. However, because so much time had passed since the original application to the court, the N.J. Supreme Court directed that the trial judge review the new circumstances.
Although Mother ultimately prevailed in this matter, because of the extensive litigation and glacier-like pace throughout the court system, Father’s prevention of her initial request may have ultimately placed her in the position where she will not likely be able to move. At the time of her original request, the children were seven (7) and four (4) years old. The children are now five (5) years older and may very well be entrenched in their current situation in New Jersey. Therefore, although Father ultimately “lost” on the legal issue, he was able to prevent the move because the children’s circumstances, and consequently, their best interests, had likely changed.
If you are considering a custody relocation, or wish to prevent one, consult with an attorney so that you can gather your facts and support your position.
Written by Linda A. Kerns, Esquire. Edited by Elizabeth A. Bokermann, Esquire.