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In-State Relocation

When divorced parents have joint custody of a child, the location of each parent’s residence is important. It is usually ideal for both parents to live in the same city or general area, in order to facilitate the children living with each parent and commuting back and forth. However, custody agreements can work successfully even with the parents living geographically further apart. Questions arise, however, when one of the parents decides to move. Can the other parent force the moving parent to stay? If one parent moves far away, can the other parent get full custody of the child?

If one parent with residential custody of a child decides to move outside the State of New Jersey, under New Jersey law (N.J.S.A. 9:2-2) that parent needs either the permission of the other parent or a court order. However, New Jersey state law does not have a statute on the subject of moving within the State of New Jersey. Fortunately, there is significant case law which provides guidance in determining how to handle an intrastate move by a parent.

New Jersey Intrastate Child Relocation Case Law

In the case of Schulze v. Morris, the New Jersey Appellate Division held that the New Jersey statute discussed above does not apply to moves within the state, and thus relocation within New Jersey does not require court approval. It did provide a caveat to this holding, reasoning that relocation may be a “substantial change in circumstances warranting modification of the custodial and parenting-time arrangement,” and therefore might be subject to a modification action.

If such a “substantial change” is found, the Appellate Division directs the courts to look at the factors laid out in a leading case on relocations outside of New Jersey, called Baures v. Lewis, to determine if such a relocation is permissible, or if some sort of modification of the court orders are required. Therefore, the analysis in relocating either within or outside of NJ is similar, although the burden to relocate outside is much heavier than relocating within.

Baures Factors

The Baures case gives us the factors listed below to help determine whether the move is permissible. The court stated that not all factors may be relevant for every case and need not be given equal weight. The court has great discretion in applying these factors, and of course, the best interest of the child is always the paramount factor in any family law matter.

The court considered the following factors:

  • The motivation for the move, as given by the party relocating;
  • Why the other party opposes such a move;
  • The prior relationship and previous dealings of the parties, at least as it pertains to any reasons given by the parties for either supporting or opposing relocation;
  • If there are equally available educational, health and entertainment opportunities and facilities, to a similar standard as to what is available in their present location;
  • If there are any special needs or talents that might require additional accommodation, and again, whether such accommodation is equally available in the place of relocation;
  • Can there still be a schedule that allows the noncustodial parent to visit and communicate with the child so as to foster a full and continuous relationship?
  • If the custodial parent requesting relocation will continue to encourage the relationship between the other parent if the move is granted by the court;
  • The potential repercussions of the move on any relationships the child might have with extended family, whether in the old or new location;
  • What the child’s preference is as to location, if they are of an age to reasonably say;
  • If the child is entering their final year of high school, the court should generally deny any request for removal until after graduation, unless that child consents to the move;
  • Is it possible that the noncustodial parent can also relocate?
  • And of course, any other factor the court deems relevant to the child’s interest.

The relocation of a child within the State of New Jersey is not an entirely settled area of law because it is difficult to know when a move is a “substantial change” that warrants judicial review. If you or your co-parent is looking to move within the State of New Jersey, it is important to speak with an attorney to discuss your case. Please call the Law Offices of Peter Van Aulen at 201-845-7400 for a free initial consultation.

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