New State Standard for Relocating Post-Divorce
Updated: Jul 3, 2019
When parents decide to divorce, they need to make arrangements to address how they will share legal and physical custody of their children. If parents can’t agree on custody, a judge will have to make these decisions for them. Whether the custody arrangement is reached by mutual agreement or a judge’s decision, a court will issue a custody order that spells out exactly how custody rights and responsibilities have been divided, including who the custodial parent is.
Post-divorce, parents may still not always see eye-to-eye on the best way to divide time with their children. When the custodial parent wants to move with the children to another state, the challenges become that much greater.
In an increasingly mobile world, it is becoming more common for families to relocate. Regardless of whether it is for a better job opportunity, being closer to relatives or getting a fresh start, a custodial parent in New Jersey must get permission from the non-custodial parent or the court before moving out of state with minor children. A move within the state will also require permission if it is far enough away to impact an agreed-upon or court-ordered parenting plan.
The state’s relocation statute allows a custodial parent to relocate out of state with his or her children if the noncustodial parent doesn’t object. If there is an objection by the noncustodial parent or the child (if of age), then the custodial parent must obtain court approval and show a reason or cause for the move.
Since 2001, New Jersey courts have used the standard set in Baures vs. Lewis to make determinations in relocation cases. However, on August 8, 2017, the state Supreme Court revised this standard in its opinion Bisbing vs. Bisbing.
Historically, New Jersey courts were concerned about how distance would affect the children’s relationship with the non-custodial parent and favored keeping the children in the state. In 2001, the Supreme Court acknowledged studies that showed what was good for the custodial parent could also be good for the children. The court also took into account advances in technology that made it easier for parents to keep in touch with their children. In light of these factors, the court revised the standard to be applied to relocation cases.
The justices in the Baures case pointed out that the impact on a noncustodial parent’s visitation was not enough to deny a custodial parent’s request to move out of state. The custodial parent only had to show that there was a “good faith” reason, meaning without intent to interfere with the other parent’s visitation rights, and that the move was in the child’s interests. If the custodial parent satisfied those points, the court would grant the request to relocate unless the other parent could show that the request to move was not made in good faith or that it was not in the children’s best interests.
Parents, attorneys and trial courts in New Jersey abided by this standard until 2017, when the state Supreme Court revisited the child relocation issue in the Bisbing case. In a major shift in balancing the interests of custodial and non-custodial parents, the sole focus now is on whether a move is in the best interests of the children.
According to the new standard, a trial court in relocation cases must now consider the same factors the court considers in an initial custody determination. In determining any custody-related arrangement, the primary consideration should be "arrangements that promote a child's continuous interaction with both parents."
It is too soon to tell if the changes will result in significantly different decisions. However, it is clear that the same "best interests of the child" standard that applies in other applications for changes or modifications in child custody and visitation will apply to applications for permission to move out of state. There no longer is a presumption in favor of the custodial parent seeking to relocate.
If you are a divorced parent with questions about the relocation of your children, it is more important than ever to consult an attorney experienced in New Jersey divorce law. Contact us confidentially at 973-509-8500 x213 or LFarber@LFarberLaw.com.
The contents of this writing are intended for general information purposes only and should not be construed as legal advice or opinion in any specific facts or circumstances