Can the Custodial Parent Move or Relocate from New Jersey With the Children Without the Other Parent’s Permission

The answer to this question is “NO” if the custodial parent shares joint legal custody with the non-custodial parent. The case that deals with what the custodial parent has to show the court to be able to move from New Jersey with the children is Baures v. Lewis, 167 N.J. 91 (2001).

Relevant Facts of the Baures Case

In the Baures case the mother, a Wisconsin native, wanted to relocate from New Jersey back to Wisconsin with the parties developmentally disabled child. The father, who was an Iowa native, wanted the child to remain in New Jersey. After a hearing the trial judge denied the mother’s relocation application.

The mother appealed the trial judge’s decision to the Appellate Division. The Appellate Division affirmed the trial court’s decision, and denied the mother’s relocation application. The mother then appealed to the New Jersey Supreme Court. The New Jersey Supreme Court laid down a very clear list of factors that the courts must use to analyze out of state relocation requests in New Jersey.

The Factors that New Jersey Courts Must Use to Analyze Out of State Relocation Requests

The first issue that the court must decide when a custodial parent requests permission to move from New Jersey with the parties children is whether or not the parents have a “shared custody arrangement”  or “shared physical custody” of their children. A shared custody arrangement is an arrangement where both parents share, to a great extent, the responsibilities and duties, normally undertaken by the custodial parent. For example, where a child splits their time 50-50 in each parent’s household shared custody may be found.

If the parties have a shared custody arrangement than the court will view the custodial parent’s application to relocate as a change in custody applicationwhich triggers an evaluation of whether the move would be in the “best interests of the child” .

If the parties do not have a shared custody arrangement then the court will view the custodial parent’s application to relocate as a removal application, which triggers an initial review and analysis of the following 2 factors:

1) Is there a good faith reason for the proposed move;

2) Is the proposed move inimical to (against) the child’s interests;

If the parent seeking to relocate can satisfy the court that their move is in good faith, and that the move is not against their child’s best interests, the burden of proof to halt the move swings to the parent who is opposing the move. The parent opposing the move has to put some credible evidence in front of the judge which shows that the proposed move is not in good faith, or that the move is against the best interests of the children. If the parent opposing the move has put sufficient evidence in front of the the judge a  hearing will be scheduled at which the following 12 factors will be analyzed.

1) What are the reasons given for the move;

2) What are the reasons given for the opposition to the move;

3) What is 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;

4) Will the child receive educational, health and leisure opportunities at least equal to what is available in New Jersey;

5) Are there any special needs or talents of the child;

6) Can a parenting time schedule and communication schedule be developed that will allow the non-custodial parent to maintain a full and continuous relationship with the child;

7) What is the likelihood that the custodial parent will continue to foster the child’s relationship with the non-custodial parent if the move is allowed;

8) What will be the effect of the move on extended family relationships in New Jersey, and in the new location;

9) If the child or children are of age, what are their individual preferences;

10) Is the child entering his or her senior year in high school – if yes, he or she should generally not be moved until graduation without his or her consent;

11) Does the non-custodial parent have the ability to relocate;

12) Any other factor bearing on the child’s interest.

The court will apply this 12 factor test to the facts and circumstances of the case, and it will make a decision on the custodial parent’s request to move out of state. It should be stressed that if the parent opposing the move fails to place sufficient evidence in front of the judge to warrant a hearing, the move will be approved without a full-blown Baures hearing.

If you have questions about how best to approach the relocation process in New Jersey feel free to contact me toll-free at 844-431-3380 or via e-mail using the contact form. I have been representing clients in family law related cases for over 20 years. My practice operates in northern New Jersey and includes representation in Bergen, Hudson, Passaic, Essex, Union and Middlesex counties. Whether you contact me via email or telephone your initial consultation is free of charge.


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