We are an increasingly mobile and transient society. As such, men and women who are divorced move frequently, for a variety of reasons, including job transfers, remarriage, and to relocate closer to relatives.
The trend in New Jersey is to allow a custodial parent to relocate with the child, outside of the State. A custodial parent cannot, however, remove the child unless the child is of suitable age to consent, the non-custodial parent consents, or if no consent is provided, upon court order.
As the party seeking or opposing relocation you must be aware of the burden of proof in a removal hearing and the factors the Court will consider.
The Supreme Court of New Jersey examined this issue at length in the case Baures v. Lewis, 167 N.J. 91 (2001) and set forth clear directives to be followed in removal matters.
It is worth mentioning that the Supreme Court was very careful in distinguishing removal cases where the divorced parents shared joint physical custody of the child. In cases of shared physical custody, the Court rejected a mere removal analysis and held that a removal motion must first be considered as a motion for a change in custody requiring a change in circumstances and a best interest of the child analysis. Accordingly, in cases where parents share physical and residential custody of a child, they will face this initial hurdle when seeking to relocate outside of New Jersey.
For those parents with a more traditional, alternate weekend type of parenting time schedule after the divorce, the custodial parent seeking removal must initially demonstrate a good faith reason for the move and show that the move is not detrimental to the child’s best interest. A proposed visitation schedule should be included with any application to the Court.
In assessing whether the custodial parent has met his/her burden of proving good faith and no detriment to the child, the Court will consider the following factors: 1) the reasons given for the move; 2) the reasons given for the opposition; 3) the past history of dealings between the parents as it relates to the reasons for and against the move; 4) the comparability of the educational, health and leisure opportunities for the child; 5) the ability of the new location to accommodate special needs or talents of the child; 6) whether a visitation and communication schedule can be created to allow the noncustodial parent a continued and full relationship with the child; 7) the likelihood that the custodial parent will foster a relationship between the child and the noncustodial parent; 8) the effect on extended family; 9) the child’s preference if he or she is of age; 10) whether the child is entering senior year in high school; 11) whether the noncustodial parent is able to relocate; 12) any other relevant factor. Baures at 116-117.
The Supreme Court concluded that the burden on the custodial parent is not difficult and can be met by addressing just a few of the above-stated factors. For example, the burden will be met if the custodial parent demonstrates that the move will allow him/her to be closer to extended family who can help to raise the child, that the educational and health opportunities in the new location are at least equal to New Jersey and that a proposed parenting schedule will allow the noncustodial parent to maintain a relationship with the child.
It is important for the relocating custodial parent to make every effort to develop an alternative parenting plan that will bridge the physical distance between the child and the noncustodial parent. The Court recognized that such a bridge is made easier with innovative technology such as e-mail in addition to daily telephone contact and parenting time during vacations, holidays and school breaks.
As the divorced parent seeking relocation, you would be wise to propose a liberal parenting schedule that provides the noncustodial parent additional time in the summer months and perhaps long weekends or a periodic additional weekend. A willingness to assume the majority of the transportation duties and costs would also bode in your favor.
Once the custodial parent has made an adequate showing, the burden of proof shifts to the noncustodial parent to demonstrate why the move is not in good faith and how it will be detrimental to the child. The noncustodial parent can offer evidence such as routine alienation efforts of the custodial parent, a poor education system in the new location, an inability to relocate, and how these factors will cause the child to suffer.
It is common for the noncustodial parent to oppose relocation because of the negative impact a move will have on his or her parenting time. The burden, however, is on the noncustodial parent and their divorce attorney to demonstrate not only that the visitation schedule will change, but also that the change will negatively impact the child.
It is simply not enough for a noncustodial parent to oppose relocation solely because it will reduce his or her parenting time. Although such a reduction is one factor to consider, the Supreme Court noted that when the custodial parent moves from the State, changes to the visitation schedule are “inevitable and acceptable.” Therefore, as the divorced parent opposing relocation, you must provide proofs of other factors that will negatively impact the child.
Relocation is one of the most difficult and fact-sensitive issues that Family Court Judges and matrimonial litigants will face. After all of the evidence is provided, the Court must be satisfied that the relocating parent has proven a good faith reason for the move and that the child will not suffer. Addressing the Baures factors and being prepared with proofs and documentation is necessary if you want to prevail in a removal matter.
