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What to do when if you, or your child’s parent are seeking to relocate? Relocation occurs when a parent moves to a different state (or country) with a minor child, and intends to remain in the state (or country) permanently.
In the state of New Jersey, N.J.S.A 9:2-2 governs what happens when a parent wants to relocate with their child. That law states: “[w]hen the Superior Court has jurisdiction over the custody and maintenance of the minor children of parents divorced, separated or living separate, and such children are natives of this State, or have resided five years within its limits, they shall not be removed out of its jurisdiction against their own consent, if of suitable age to signify the same, nor while under that age without the consent of both parents, unless the court, upon cause shown, shall otherwise order. The court, upon application of any person in behalf of such minors, may require such security and issue such writs and processes as shall be deemed proper to effect the purposes of this section.”
Put simply, if a child is removed from New Jersey, after New Jersey is the child’s “home state” then the parent seeking to relocate requires express consent or must request permission from the Court.
Is a Hearing Required?
If this question was asked prior to 2017, the answer would have probably been “no.” However, in 2017, things changed as a result of a landmark decision in Bisbing v. Bisbing, 230 N.J. 309. In this case, after getting a divorce, the mother of twin girls was ready to move on with her life. She was going to marry a new man. However, her new future husband was a Utah resident and she wanted to take her daughters with her. However, the twin girls’ father refused to consent to the girls permanently moving to Utah. The case ultimately made it to the New Jersey Supreme Court which decided that when it comes to parents wanting to relocate to a different state, a hearing must be held to help determine if relocation would be in the best interest of the child.
How do Courts Determine Relocation?
With the new procedural posture in place by the New Jersey Supreme Court, courts must hold plenary hearings (trials) to decide if relocation of a minor child will be granted over the objection of another parent. But how do courts make this determination?
It is important to remember that the courts have one main concept in mind while making determinations regarding minor children. That concept is “the best interest of the child.” When a court has the responsibility of determining if relocation of a minor child should be granted to any one parent, the court conducts a best interest analysis. In the state of New Jersey, under N.J.S.A 9:2-4, the best interest of the child analysis includes looking into a variety of factors, the same ones used in determining child custody. These factors include:
(1) Whether the parents are able to properly communicate and cooperate in all major matters relating to the child;
(2) Whether the parents are willing to accept custody and any history of one parent being unwillingness to allow the other parent to spend time with the child; (3) The minor child’s relationship with his parents and siblings;
(4) Any history of domestic violence;
(5) the child’s safety and the safety of either parent from physical abuse by the other parent;
(6)the child’s preference, if the child is mature enough to make a reasonable decision; (7) the child’s needs;
(8)Whether the home environment offered is stable;
(9)the quality and continuity of the child’s education;
(10) The parent’s fitness to care for the child;
(11) How close the parents live to each other;
(12) The relationship between the child and each parent before the separation or divorce;
(13) The parents’ employment responsibilities;
(14) The child’s age;
(15) And the number of children.
Taking these factors into account, the court can make a rational decision as to whether relocation would be in the child’s best interest. If the court finds that relocation would not be in the child’s best interest, the child may not relocate to another state.
What if I Want to Move Within New Jersey?
Moving to another state is one thing. However, what requirements must be met if you want to relocate with your child within the state of New Jersey?
Moving within the state would not necessarily require a hearing. According to Schulze v. Morris, 361 N.J. Super. 419, when a party moves somewhere in state, a trial is not required. However, an application may be made by an opposing party to change
parenting-time, since it relocating “intrastate” may be a substantial change in circumstances. Courts have stated that “the relocation of a child by the residential custodial parent from one location in New Jersey to another may have a significant impact upon the relationship between the child and the non-residential custodial parent that may constitute a substantial change of circumstances warranting modification of the custodial and parenting-time arrangement.”
In simple terms, even though the relocation is within the state of New Jersey, if the child relocates with the parent with physical custody of the child, it may in some way have a negative effect on any parenting time arrangement the parents had previously agreed to. If this is the case, the existing parenting time arrangement would need to be changed in order to make parenting time feasible for both parents.
Importance of Good Faith Relocation
Good faith in relocation is extremely important and judges carefully determine whether relocation is being requested in good faith. The court must be convinced that the parent seeking to relocate is not attempting to harm the other parent by trying to take their child far away. The court wants to make sure that the parent is relocating for a practical reason, in good faith. Some examples of relocation in good faith include moving to a different town, state, or country due to marriage. Or even relocating because the parent seeking relocation has been offered a better job opportunity and will only be able to take the position if the parent moves from to a different part of New Jersey, different state, or country. Attempting to relocate a child simply to try and get the child to be far away from their other parent will not be found to have acted in good faith by a court and their application for relocation of the child will probably not be granted. The most important thing is always acting in the child’s best interest and taking a child away from one of their parents is usually not in the child’s best interest.
Some examples of bad faith relocation occurs when a party tries to circumvent the judicial system or to use the judicial system to circumvent laws on relocation. Like obtaining a temporary restraining order, solely to be given custody of the child(ren), left alone, then fleeing to a different state during the process. Other examples include when a parent alienates another for many months, then suddenly appears in a different state, then uses same as a justification to remain in the new state. Our court’s have seen it all!
If you or someone you know need legal assistance relocating, please do not hesitate to contact A.Brown Esq, LLC for a free consultation.