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In a 2017 decision, the New Jersey Supreme Court drastically changed the law that applies to out-of-state relocation with a child after a divorce. Both parents should know how the law now works and their rights in case one parent wants to move out of state with a child. The first thing they should do is to see a family law attorney to figure out how to proceed with the best legal strategy.
So long as the other parent could still have their parenting time and the parenting plan would not be disturbed, a parent who had been granted primary physical child custody has the ability to relocate within the state. The issue would be with an out-of-state move, even if the other parent were still to remain relatively close.
The custodial parent does not have an unlimited right to go where they want with the child because both parents have rights. The court has the final say in any matter involving the children. They presume that children are better off with regular contact with both parents. The court will use the best interests of the child test that they use in family law matters involving children. The judge may not be as interested in the benefits that the move will have for the parent. Accordingly, things like a far move that could completely keep the other parent from seeing the child may not win a judge’s approval.
New Jersey law states that when a parent wants to move, they must have either the permission of the other parent or the courts. The first thing they should do is speak to the other parent to see if there is an agreement that can be reached. Some non-custodial parents may be willing to agree to the move if they will still have the ability to see their child through an alternate arrangement. If the other parent is not interested in discussing the matter or cannot agree, the parent who wishes to relocate will need to go to court.
In 2017, the New Jersey Supreme Court made it somewhat more difficult for parents to move out of state with the child. After hearing arguments in Jaime Taormina Bisbing v. Glenn R. Bisbing, III, the court saw fit to make major changes to the way that the law is interpreted, and it changed the standard that had been established by the state’s highest court in 2001 in Baures v. Lewis.
Previously, the state’s law about relocation did not apply the best interests test to the proposed move. Instead, the court would look at the reasons for the parent’s move and why it did not harm the child. It was not an affirmative best interests test but more like a “do no harm” test. Now, the court must look at how the move would actually benefit the child. Presumably, this made moving out of New Jersey with children harder than it was in the past.
Following the Bisbing decision, there are many factors that are now considered in the best interests test. They include:
These are just some of the considerations. As a divorce lawyer will tell you, judges have a lot of flexibility to apply the best interests test as they see fit. The actual factors of the test that the judge could use do not necessarily favor far moves. While a parent may be able to make the case that moving for a job is in the child’s best interests, they may have more difficulty showing that they should be able to move for a remarriage.
The burden of proof is on the parent who wants to relocate to show that the move is in the child’s best interests. They will need to show that the child will react positively to the move and that it will benefit them. The Supreme Court was clear that what is good for the parent is not always what is best for the child.
It does not matter whether the parents share physical custody or if one parent has primary physical custody. The courts have made it clear that the law respects the rights of both parents, and it will hold a hearing to decide how the law applies.
With this in mind, it is not impossible to relocate. If you are trying to move out of New Jersey with your children, it is best to see a family law attorney to figure out the right legal strategy. You may be best served by trying to speak to and reason with the other parent first. You may be able to reach an agreement with them to secure permission for your move and avoid a battle. If not, you may need to go through a court fight with the assistance of your family lawyer.
You could still show the judge that the move is in the best interests of the child. If the other parent is a regular part of the children’s lives and spends a lot of time with them, it will be more difficult. However, each case is unique, and you should talk to a family lawyer about your situation.
On the flip side, if you are a parent and receive notice that the other parent wants to move, you should know that you have legal rights. You should consult with a divorce attorney to find out what you could do to protect your own custodial rights. Ideally, both parents would work together for the best interests of the children, but there are times when life gets in the way and forces difficult decisions.
When considering a relocation, both parents should work with their respective family lawyers to document the amount of time that they spend with the children and their relationship. They should not try to pressure or persuade the children, but they should objectively try to show a judge the nature of their relationship with their kids because that is the most important audience. Things such as schedules, pictures, and witness testimony could show the nature of each parent’s relationship with the children. At the end of the day, this may be the most important thing that the judge considers in deciding whether to grant the request to move.
For help with questions about relocation issues, contact a divorce attorney at Lawrence Law by calling us at (908) 645-1000 to learn more about how the law may apply to you. Our Watchung and Red Bank family law attorneys are ready to help you.
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