Child Custody and Relocation Laws in New Jersey

Learn about moving a child out of state during or after a New Jersey divorce.

By , Retired Judge
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Child Custody and Parenting Time (Visitation) in New Jersey

Child custody and parenting time can be contentious issues when parents are splitting up. In New Jersey, as in all states, courts are making an effort to reduce the hostility and foster a loving and nurturing relationship between the children and both parents.

One method of accomplishing this is by veering away, whenever possible, from the concept that one parent has custody and the other doesn't. That's "zero-sum" thinking, which makes custody sound like a game to be won or lost. Today, the emphasis is on joint legal custody

With this theory, although a child may primarily reside with one parent (parent of primary residence, or PPR), the other parent (parent of alternate residence, or PAR) is still actively involved in the major decisions impacting the child's life, such as health-related issues, education, and the child's general welfare. Note, however, that a court won't award joint legal custody if a parent's participation in decision making would be harmful to the child.

Parenting time is usually geared to having the child spend as much time with the PAR as reasonably feasible. It takes into account the parents' schedules, as well as the child's, and attempts to accommodate all concerned as best as possible.

In any legal action involving children in New Jersey, the courts must be guided by one overarching principle: the best interest of the child is of primary importance. (N.J.S.A. 9:2-4a.)

Child Custody Relocation Laws in New Jersey

Under New Jersey law, moving a child out of state requires permission from the other parent or the courts. The statute applies to a minor child born in the state, or who has lived in the state for at least five years. (N.J.S.A. 9:2-2).

For years the courts made it fairly easy for a custodial parent (the PPR) to move out of state with a child. Basically, all you had to do was show that there was a legitimate reason for the move, and that it wouldn't adversely affect the child. (Baures v. Lewis, 167 N.J. 91 (2001).) This was based in part on the reasoning that what was good for the custodial parent was probably good for the child as well.

All that changed in 2017, with the case of Bisbing v. Bisbing, 230 N.J. 309 (2017). In that case, at the time of the divorce the parents had twin seven-year-old daughters. Shortly after the divorce, the mother indicated she was planning to marry a Utah resident she'd been dating, and asked for permission to move the children to that state. The children's father refused, so the mother took the case to court. The trial judge granted the mother's request, ruling that it was made in good faith and wouldn't be harmful to the children. The father appealed the decision, and the case ultimately made its way to the New Jersey Supreme Court. The Supreme Court took that opportunity to overhaul the existing criteria for deciding whether to grant a request to move a child out of state.

The Standard for Moving a Child Out of State in New Jersey

The New Jersey Supreme Court reasoned that the fairest way to decide the issue of removing a child from the state is to apply the same standard used in determining custody matters in general—what arrangement is in the best interests of the child. In effect, the Court downgraded a parent's desire to move to a secondary status, and said just because relocation wouldn't harm a child, that doesn't necessarily mean it's what's best for that child.

The court further stated that the "best interests" standard should be applied in all cases where parents have joint legal custody, regardless of whether a parent is the PPR or the PAR or the parents equally share custody. (There are situations where parents have joint physical custody, with the children spending roughly the same amount of time living with each parent.)

In order to assist a judge in making the "best interests" determination, the law lists several factors the judge should consider, including but not limited to:

  • 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 which isn't based on substantiated abuse
  • the interaction and relationship of the child with its parents and siblings
  • any history of domestic violence
  • the safety of the child and the safety of either parent from physical abuse by the other parent
  • the child's preference, when the child has the capacity to make an intelligent decision
  • the child's needs
  • the stability of the home environment offered by the parents
  • the quality and continuity of the child's education
  • the parents' fitness to exercise custody
  • the geographical proximity of the parents' homes
  • the extent and quality of the time spent with the child before or after the separation
  • the parents' employment responsibilities, and
  • the age and number of the children. (N.J.S.A. 9:2-4.)

Bisbing also states that judges can consider other factors they deem pertinent to the particular case they're handling.

So What's the Bottom Line if I Want to Move With My Child?

If you're asking how far can I move with joint custody in New Jersey, the answer is—it depends. As we've seen, it's going to hinge on what's in your child's best interest. As indicated above, moving out of state definitely requires permission. There's potentially less of an issue if you'll be staying in-state, because in that scenario you're not taking the child out of the jurisdiction of the state courts.

But if there's a parenting plan in place, and your move within the state would disrupt that plan, you'll likely need permission, especially because the parenting plan is usually incorporated in your divorce judgment, which means you're legally bound by its terms.

Disputes over moving with a child are almost always time-consuming, expensive (think attorneys' fees), and emotionally depleting—perhaps even debilitating—for all concerned, including your children. So before you undertake a court battle, you might want to seek the help of a mental health professional to evaluate the potential effects of the proposed move on the child.

This type of guidance can provide you with an invaluable assessment of your chances for success and, perhaps more importantly, the wisdom of making the move in the first place.

As a practical matter, you should make every effort to resolve these matters amicably. If you don't feel you can accomplish that between yourself and the other parent, consider enlisting the help of a qualified mediator. Their expertise in guiding the discussion can make a world of difference.

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