In today’s increasingly mobile society, it is very common for a separated or divorced custodial parent to want to move out of New Jersey with a minor child.
What happens if the non-custodial parent refuses to consent? In New Jersey, the custodial parent will need to make a Motion to a family law judge to decide the dispute. This Motion is commonly referred to as a “relocation” application.
In 2001, the New Jersey Supreme Court announced the ground rules by which a relocation application must be judged, when it decided the case of Baures v. Lewis.
First, the party seeking to move must present at least some evidence that: (1) there is a good faith reason for the move and (2) that the move will not be harmful to the child. In addition, he or she must provide a visitation proposal.
Once that is done, the onus is then on the noncustodial parent to produce evidence that the move either is not being made in good faith or will be harmful to the child. Where visitation is the issue, the non-custodial parent must show not just that the visitation will change, but that the change will negatively affect the child.
The Baures Court identified 11 specific factors which a New Jersey family court should focus on in making its decision on a relocation application:
1. the reasons given for the move;
2. 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;
3. whether the child will receive educational, health and leisure opportunities at least equal to what is available here;
4. any special needs or talents of the child that require accommodation and whether such accommodation or its equivalent is available in the new location;
5. whether a visitation and communication schedule can be developed that will allow the noncustodial parent to maintain a full and continuous relationship with the child;
6. the likelihood that the custodial parent will continue to foster the child’s relationship with the noncustodial parent if the move is allowed;
7. the effect of the move on extended family relationships here and in the new location;
8. if the child is of age, his or her preference;
9. 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;
10. whether the noncustodial parent has the ability to relocate.
The Court also authorized a New Jersey family court to consider “any other factor bearing on the child’s interest.”
Deciding a relocation case is one of the most difficult decisions for any New Jersey family court judge. As the Baures Court observed: “If the removal is denied, the custodial parent may be embittered by the assault on his or her autonomy. If it is granted, the noncustodial parent may live with the abiding belief that his or her connection to the child has been lost forever.”
When you first contact a New Jersey family lawyer regarding a relocation matter, a good barometer of whether you should even consider hiring that lawyer is whether the lawyer has read the Baurescase and can tell you what it says.
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