Relocation of a child when one parent wants to move out of state is a tough issue, but the right lawyers can help. For divorced or separated parties who share a child, they quickly come to realize ties to their ex-partner are not as removed as they hoped. Particularly, and most common, for parties who share joint legal custody, both parents continue to play a role in and are entitled to decision-making authority in all significant aspects of the child’s life. Along with decision-making authority, parents should develop a parenting time schedule through a well-constructed agreement drafted by their attorneys whereby both parents share time with the child. For parents who spend more than 50% of the year with the child, they are referred to as the custodial parent, or the parent of primary residence. The parent with less than 50% of the parenting time is the non-custodial parent, or the parent of alternate residence. What happens if either parent wants to leave the state of New Jersey and start a new life, whether because of a new job or their family resides elsewhere? Conversely, what is a parent to do when the other wants to pick up and leave the state and relocate elsewhere with their child?
Very recently, two Hollywood actresses witnessed the challenge involved in such a situation, and neither benefited from being a Hollywood starlet. Oscar winning actress Halle Berry sought to permanently move with the her four-year old daughter to France. While Berry cited the country’s stricter laws with respect to paparazzi and privacy as a benefit to the relocation of her daughter, it was clear Berry’s main motivation was to live with her new fiancé. The Los Angeles Superior Court* denied Berry the ability to relocate with the child, ordering her to retain residence on American soil so the child could maintain her relationship with both parents.
Oppositely, Gossip Girl star, Kelly Rutherford, endured a shocking decision by another Los Angeles Superior Court that allowed Rutherford’s children to relocate from New York and remain in France with their father, requiring Rutherford to make the trans Atlantic trip to see her children. While the Court allowed relocation in this case, the Court’s reasoning was similar to that in Berry’s. Once again, the Los Angeles Superior Court* cited the importance of the children maintaining a relationship with both parents. (Rutherford’s former husband is banned from traveling to the US because his visa was revoked, while Rutherford had the flexibility to be in both countries.)
In the State of New Jersey, when a parent seeks to relocate out of the state with the parties’ child, whether to another state or internationally, the parent must either receive consent from the other parent, or make a formal application to the Court seeking permission for the move. The seminal case that established the standard for a relocating parent, as well as the factors the Court will apply in its decision to allow removal is Baures v. Lewis. The Court in Baures recognized the rights of a non-custodial parent and the child to maintain and develop a relationship, and balanced these rights with the right of the custodial parent to maintain a right to seek happiness and fulfillment in his or her own life. To achieve a balance between these interests, the Court created a two-pronged analysis. First, the party seeking relocation must show a good faith motivation for the removal, followed by a showing that the move would not be harmful to the child’s best interests. Once this burden is satisfied, the Court shifts the burden to the non-custodial parent to show the request for removal was in bad faith, or would be harmful to the child’s best interests.
Child Relocation Factors
As part of the analysis, the Baures Court identified the following factors to be applied in all removal cases. The Court recognized each case is different and some factors will apply more appropriately than others given the circumstances of each case:
- the reasons given for the move;
- the reasons given for the opposition;
- the history of dealings between the parties;
- whether the child will receive educational, health and leisure opportunities at least equal to what is available in the home state;
- 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 communication 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 in the home state 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; and
- any other factor bearing on the child’s interest.
When seeking to relocate or fighting a relocation application, you should keep in mind the above analysis and what factors a Court will consider. Hire an attorney who is familiar with relocation cases and able to effectively represent your interests in Court.
Contact an Experienced New Jersey Family Law and Divorce Lawyer at Lyons & Associates
To learn how we can help you in any family law dispute in New Jersey, please call Lyons & Associates to schedule a confidential meeting with a member of our attorney team. Contact us by calling 908-575-9777 or fill out our online intake form.
*The laws in the States of California do not mirror the laws of New Jersey, and one should make themselves completely familiar with the standard laws of their home state. However, the above examples help shed light on factors that are generally considered in relocation cases.
Written by: Kristyl M. Berckes, Esq.