Child Custody Relocation in New Jersey

Posted by Joseph D. Lento | Dec 05, 2016 | 0 Comments

At times, parents may need to move because of work obligations, family matters, and so forth.  When the custody of a child or children is shared by parents in New Jersey, moving, even to another county, not to mention another state, can create complications.  The parent who wants to or needs to move will need to consider how custody of child can be affected by such a move.

Ultimately, New Jersey Family Law has established what factors will be considered when a parent proposes a move with a child, and also what steps need to be taken for a parental relocation, also known as a custody relocation or a removal application, to be addressed and considered by New Jersey Family Court.  Understanding these factors and required steps is critical to success whether seeking or opposing a parental relocation.

Common Reasons Why New Jersey Parents Move

Different parents have different reasons why they may need to move from either one town in New Jersey to another, one county in New Jersey to another, or from New Jersey to another state such as Delaware, or New York, or even further.

Parents who "relocate," as the term to move is known in Family Law, may have at some time prior undergone a divorce, or may be unmarried, but nonetheless share the custody of their child or children.  Regardless of the circumstances, parents may want to relocate, or need to relocate, for countless reasons.  Some common reasons why parents propose a "relocation" with a child is to move to a "sun-belt state," such as Florida or North Carolina for example, where the cost of living may be less expensive than New Jersey (and even if nothing else, the real estate taxes are most likely definitely lower).  Other parents may be employed by a company that is moving to another part of New Jersey, or another state altogether.  Other parents yet may have family obligations that necessitate a relocation; for example, a parent of a child may have an older parent or parents that require care in their later years.  Some parents may meet a new spouse who has to move elsewhere for their own reasons. 

Regardless of the reason or reasons why parents may need to move or want to move, New Jersey law specifies under what circumstances a proposed relocation will be considered appropriate.  As can be understood, when one parent proposes to move elsewhere and the custody of a child is involved, it can greatly interfere with the custody rights of the other parent who is not moving.  For this reason and others, New Jersey Family Law requires that a proposed relocation with a child or children conform with established procedures, and that the parent who proposes the move can demonstrate to the presiding New Jersey Family Court that the proposed move should be approved.

What is the law in New Jersey regarding relocating with a child?

New Jersey Family Law is "codified" by statue, and the specific statutory provision regarding New Jersey child relocation law can be found under N.J.S.A. 9:2-2.  This statute states that the minor child or children or parents who are divorced, separated, or living apart, who were born in New Jersey, or have resided in New Jersey for five years, cannot be removed (or "relocated") for residential purposes outside of New Jersey without the consent of both parents unless the applicable New Jersey Family Court otherwise orders as such.

Because proposed relocations of children are often highly-contested matters, the New Jersey Supreme Court has in the past been involved with determining what factors the trial court (the applicable New Jersey Superior Court) should consider when deciding whether a proposed relocation of a child or children should be granted.

The matter of Baures v. Lewis, 167 N.J. 91 (2001) is the relocation case which went up to the New Jersey Supreme Court.  In rendering its opinion, the New Jersey Supreme Court outlined the factors that the trial court should consider when deciding the matter of a proposed relocation.

The parent who proposes the relocation of the minor child or children has the burden of proving to the trial court that there is a good-faith reason for the proposed move.  The parent also has the burden of proving that the proposed move will not be contrary to the child's or children's interests.  In deciding whether there is a good-faith basis for the proposed move and that the proposed move will not be contrary to the child's or children's interests, the Family Court judge will consider the following factors:

  • The reason(s) provided by the parent who proposes the move - For example, parent who needs to move for work will be given more consideration than a parent who wants to move because they prefer warmer weather year-round for example.
  • The reason(s) provided by the parent who opposes the move - For example, a good-faith reason opposing the move (such as if a parent's custodial time will be severely limited if a parent moves to another state) will be given consideration whereas opposing a proposed relocation just for the sake of opposing will not be.
  • The past history of dealings between the parents as it relates to the reason(s) provided by both parties for proposing and opposing the move - For example, if the parents have been at odds in the past and have been oppositional to one another with no basis, the Court can consider as such in determining whether present opposition to a proposed move is legitimate or insincere.
  • Whether the child or children will receive educational, health, and recreational opportunities at least the same to what is available in New Jersey - For example, is the school district where the parent proposes to relocate to better than the school district in New Jersey where the child attends school?
  • Any special needs or talents of the child or children - For example, if an older child is a star athlete in New Jersey and has the opportunity to advance further in their sport in New Jersey because of the opportunities available to him or her in New Jersey versus what will be available to him or her in another state, the Family Court judge can consider as such in deciding whether the relocation will be in the child's interests.
  • Whether a parenting-time schedule and communication schedule can be developed that will allow the non-custodial parent (in New Jersey) to maintain a full and continuous relationship with the child or children if the proposed relocation is approved.
  • The likelihood that the custodial parent will continue to foster the child's or children's relationship with the non-custodial parent (in New Jersey) if the proposed relocation is approved - For example, if the parent who proposes the move has made efforts to foster such a relationship in the past, or has even actively interfered in such a relationship, the Court will regard the proposed relocation with disapproval.
  • The effect of the move on extended family relationship in New Jersey and in proposed new location - For example, if a child has many extended family members (such as aunts, uncles, cousins, and so forth) who live where the parent who proposes the relocation intends to move to, and if the child has not extended family relationships in New Jersey, this can work in the favor of the parent proposing the move.
  • The preference of the child or children if of appropriate capability and age to form an intelligent choice - For example, the preference of a 17 year old will be considered much more so than that of a 12 year old although Family Court judges in New Jersey must consider a child's preference in many, but not all, instances.
  • Whether the child or child is entering his or her senior year of 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 (in New Jersey) has the ability to relocate.
  • Any other factor affecting the child's or children's interests.

Are some proposed child relocations regarded as more acceptable than others?

All proposed relocations will be judged on the above-referenced factors, but where a parent proposes to move to is often a major determining factor in whether a proposed relocation will be approved by New Jersey Family Court.  When a New Jersey parent who lives in Atlantic, Burlington, Camden, Cape May, Cumberland, Gloucester, Mercer, or Salem County, propose to move to New Castle County, Delaware, and sufficient reasons are put forth by the relocating parent, such a proposed relocation will be granted in many instances as long as New Jersey retains jurisdiction of the custody case as long as the law allows

All states, New Jersey included, are cautious about allowing a child or children to leave the home state's jurisdiction for a period of time (often six months) that will allow the other state to resume jurisdiction.  For example, New Jersey does not want to lose jurisdiction over a child's custody to Delaware and vice versa.  The reason for this concern is that the state, New Jersey for example, regards itself as responsible for the child's interests.  If a state loses jurisdiction, it loses its ability to protect a child's interests, and will not necessarily depend on the other state to do so.

How can I get my relocation petition approved?

As noted, some parents may want to move or may need to move further than others.  When this is the case, parents may have a more difficult time in getting New Jersey Family Court to grant a proposed relocation.  Knowing that this is the case, a parent can be proactive in presenting the proposed relocation to the Court.  For example, the parent proposing the relocation can offer the would-be non-custodial parent (in New Jersey) substantially-extended summer and holiday parenting time in an attempt to make the proposed relocation more equitable. The parent proposing the relocation can agree, if financially practical, to fly the non-custodial parent (in New Jersey) to the new location several times per year to allow the non-custodial more time with the child or children.  Such offers (and expected subsequent follow through) may be viewed as reasons to approve a proposed relocation in situations where this may have otherwise not been the case.  If the Court regards the parent who proposes the child relocation as willing to make the extra effort to make the move work for all parties involved, this can be a determining factor.

There are of course the more basic factors that the Court will consider. The parent proposing the child relocation must demonstrate the benefits of living in Florida, for example, compared to living in New Jersey.  Comprehensive statistics about the lower cost of living in the proposed new state, Florida for example, including statistics about housing costs, lower taxes and consumer prices.  A parent should also provide detailed information regarding more favorable employment prospects in the new state than those available in New Jersey if the parent seeking to move has not already been offered or accepted new employment.  Similar to the above-referenced considerations, the parent seeking to move with the child or children may not have to offer to fly the non-custodial parent to Florida for example, but planning for extensive phone, Skype or FaceTime contact with the child or children can also show the parent's willingness to make the proposed relocation work for both parents.

How does a parent's employment affect a custody relocation?

The issue of work often arises in custody relocation cases in New Jersey.  Parents, whether those seeking a relocation or opposing a relocation, should It is not a mandatory prerequisite that the parent seeking to move with the child or children have guaranteed employment in the proposed state.  This issue was specifically addressed by the Court in the matter of Benjamin v. Benjamin, 430 N.J. Super. 301 (Ch. Div. 2012).  In this case, the Court held that the reason that employment is not a mandatory prerequisite because it is unrealistic to expect an employer in another state to offer guaranteed employment to an arms-length applicant who: 1) still lives in New Jersey; 2) is in the middle of ongoing Family Court litigation which may last for months; and 3) cannot reasonably inform the employer whether or when he or she will be able to start work.

What happens if the other parent objects to the relocation?

When a proposed relocation is approved by New Jersey Family Court, the effects on all parties can be profound and can last a lifetime; whether the parent seeking to move, the parent who remains in New Jersey, or the child or children, among potential others.

Because the stakes are often so high, the parent who does seek the custody relocation will often oppose the removal application.  When this takes place, New Jersey Family Court will schedule a "plenary hearing," which is a hearing where the Court considers a motion by one of the parties that requires a court order (as to the decision regarding the child removal application), to address genuine issues of fact as to whether or not the proposed move will be to child's or children's detriment; personally, socially, or financially.  The child removal application filed by the parent seeking to move will be addressed and considered at this plenary hearing, where witnesses are called to testify either in support or opposition to the relocation, documentation is introduced into evidence, and the parents' attorney will present argument as to why the relocation of the child or children should be approved or denied.  After the hearing, the judge will prepare post-hearing, proposed findings of fact and conclusions of law which explains the judge's reasoning in the decision.

New Jersey Child Relocation Attorney | New Jersey Parental Relocation Attorney

New Jersey Family Law regarding a parent's relocation with a child can be complicated; having many technicalities and also having many specific requirements that must be addressed.  Considerations such as the factors set forth in Bauers must also be understood and addressed.  No parent, whether the party intending to relocate or the party objecting to the relocation, should go it alone with such so much at stake regarding not only their own future, but that of their child or children.  New Jersey parents seeking to relocate with a child and parents trying to prevent a child from relocating should have an experienced and dedicated New Jersey child relocation attorney in their corner to maximize the likelihood of success.  Contact attorney Joseph D. Lento today to learn how he can help.

About the Author

Joseph D. Lento

"I pride myself on having heart and driving hard to get results!" Attorney Joseph D. Lento is a veteran of one of the nation's busiest family courts with nearly 20 years' experience passionately helping families. By day, he worked in the trenches of family court, and at night, he studied the law. He helped countless families while working at family court, and he went on to become an attorney, dedicating his law practice to continuing the work he started years earlier. Mr. Lento's experience both behind the scenes and on the front lines allows him to understand a client's family law matter from all angles, and allows him to find and employ the most effective strategies to get favorable outcomes for any client. Joseph D. Lento is licensed in New Jersey and New York, and is admitted pro hac vice as needed nationwide. In the courtroom and in life, attorney Joseph D. Lento stands up when the bell rings! He does not settle for the easiest outcome, and instead prioritizes his clients' needs and protects their interests.


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