Relocation Out Of State with a Child During Or After Divorce: New Jersey Law

A divorced parent might want to relocate with a child for any one of a myriad of reasons, such as a job transfer, a desire or financial need to be close to extended family, or remarriage. These requests are very often met with resistance from the other parent, and can turn into very emotional conflicts. If the parents aren't able to come to some kind of compromise through negotiation or mediation, a court must make the determination as to whether a relocation out of state with the child should be permitted. 

Whether a court will permit a parent to relocate with a child depends on various factors. The core issue, however, is the balance between one parent's right to freely move elsewhere during or after a divorce, and the other parent's right to protection of a parent-child relationship. How a court views and analyzes such a request depends greatly upon the existing custodial arrangement between the parents and the stage of the divorce litigation.

The State of New Jersey has long protected the right of the child to have and maintain a relationship with both parents after a separation or divorce. Our custody statute specifically requires the preservation of both relationships. With that in mind, these are the issues a court considers in a relocation case.

What is the existing custodial arrangement?

The first step in any relocation analysis is to establish what the present custodial arrangement between the parents is or should be. If there is no final agreement or judgment of custody at the time the request for relocation is made, a court must first make a custody determination. In making a custody determination, a court is guided by the best interests of the child, which includes a consideration of such factors as:

the parents' ability to agree, communicate and cooperate in matters relating to the child; the parents' willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse; the interaction and relationship of the child with its parents and siblings; the history of domestic violence, if any; the safety of the child and the safety of either parent from physical abuse by the other parent; the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision; the needs of the child; the stability of the home environment offered; the quality and continuity of the child's education; the fitness of the parents; the geographical proximity of the parents' homes; the extent and quality of the time spent with the child prior to or subsequent to the separation; the parents' employment responsibilities; and the age and number of the children. A parent shall not be deemed unfit unless the parents' conduct has a substantial adverse effect on the child.¹

In determining what is in a child's best interests, New Jersey courts have stated that the "paramount consideration is the safety, happiness, physical, mental and moral welfare of the child" and have determined that neither parent has a superior right to custody, and that each case must be decided on its own facts and circumstances. ²

If the parents already have reached a final agreement or a court has entered a final judgment of custody on the issue of custody of the child, then a court must look to any existing court order as a starting point for any relocation analysis.

If the parents have joint physical custody

The New Jersey Supreme Court has defined joint physical custody as "joint responsibility for minor day-to-day decisions and the exertion of continuous custody by both parents over a child for significant periods of time." ³ Joint physical custody can exist in the context of various time-sharing arrangements, including alternating weeks or shifting back and forth during the course of a week--the time doesn't have to be equal, but the child must spend significant time with each parent. Not living with the child but having periods of "parenting times" does not necessarily constitute joint physical custody. ⁴ If the parents have joint physical custody, then a court evaluates a relocation claim based on a change of custody analysis focusing on a traditional best interest standard, as defined above, rather than using the relocation analysis that's required if one parent has sole physical custody.

If one parent has sole physical custody or is the parent of primary residence

The relocation analysis is quite different if a court finds that one parent has or should have sole physical custody. The New Jersey Supreme Court has defined a sole physical custody arrangement as one in which, "although both roles that of primary and secondary caretaker create responsibility over children of divorce, the primary caretaker has the greater physical and emotional role." ⁵ Where a sole physical custody arrangement exists, a court shall not utilize a best interest standard in determining a request for relocation; rather, it is guided by a two-prong test. First, the court must determine whether the request to relocate is made in good faith and for good cause, rather than intended solely to frustrate the parental rights of the other parent.

If the parent seeking to move can meet this initial burden of showing good faith, then the parent opposing the move must prove the second prong of the test, namely, that the move would be inimical to the child's best interest--in other words, that it would cause detriment to the child. ⁶ The New Jersey Supreme Court has defined7 the course for a court to follow in a relocation application: "The critical path to a removal disposition therefore is not necessarily the one that satisfies one parent or even splits the difference between the parents, but one that will not cause detriment to the child." In the determination as to whether a relocation will be detrimental to a child, a court must consider the following factors:

• The reasons given for the move
• The reasons given for the opposition
• The past history of dealings between the parties insofar as it bears on the reasons advanced by both parties for supporting and opposing the move
• Whether the child will receive educational, health and leisure opportunities at least equal to what is available here
• Any special needs or talents of the child that require accommodation and whether such accommodation or its equivalent is available in the new location
• Whether a visitation and communications schedule can be developed that will allow the non-custodial parent to maintain a full and continuous relationship with the child
• The likelihood that the custodial parent will continue to foster the child's relationship with the non-custodial parent if the move is allowed
• The effect of the move on extended family relationships, here and in the new location
• If the child is of age, his or her preference
• Whether the child is entering his or her senior year in 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 has the ability to relocate
• Any other factor bearing on the child's best interest ⁸

The court will consider all of the above factors after a hearing at which testimony of the parties and, often, psychological/custody experts, is given.

Whether you are seeking permission to move or wish to oppose your child moving out of state, you will need to talk to an attorney. Relocation cases are challenging and emotional, and the law is complicated. 

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1 N.J.S.A. 9;2-4
2 Fantony v. Fantony, 21 N.J. 525, 536-37 (1956)
3 Pascale v. Pascale, 140 N.J. 583, 596 (1995)
4 Pascale v. Pascale, 140 N.J. 583, 596 (1995)
5 Id. at 598
6 Holder v. Polanski, 111 N.J. 344 (1988).
7 Baures v. Lewis, 167 N.J. 91, 115-116 (2001)
8 Id.