New Jersey parents who have primary physical (or residential) custody over their children may be surprised to find out that they cannot move to another state with their children without the consent of the non-custodial parent (NJSA § 9:2-2). It does not matter if the parent already has accepted a new job, signed a lease or bought a new home out-of-state. If the other parent will not consent to the move, then the custodial parent must get approval from the court before relocating with his or her children.

Relocation and the Baures Factors

In New Jersey, the law recognizes the importance of having both parents active in their children's lives. Since it may be difficult, if not impossible, for a non-custodial parent to maintain a relationship with a child that lives in another state, the burden initially falls on the parent seeking to relocate to show why the move is necessary.

In Baures v. Lewis 167 NJ 91 (2001), the New Jersey Supreme Court announced the legal standard for relocation cases. According to the Baures opinion, the custodial parent has the initial burden to prove that there is a good faith reason for the move and that the move will not be harmful to the child's best interests.

Examples of good faith reasons for the move include a new job and moving closer to extended family. As part of this initial showing, the custodial parent also should have a proposed visitation and communication schedule between the non-custodial parent and child.

If the custodial parent cannot meet this initial burden - which generally is not that difficult to meet - then the court will deny the relocation application. However, if the parent can meet this standard, then the burden shifts to the non-custodial parent to prove that the relocation was not motivated by a good faith reason and/or that the move is not in the child's best interests.

For example, the non-custodial parent may have evidence proving that the other parent's motivation from the move is to prevent him or her from spending time with the child. The non-custodial parent also may be able to show that an acceptable visitation plan will be impossible to create and that he or she will not be able to maintain a full and continuous relationship with the child outside of New Jersey.

The Baures court announced 12 factors that should be considered before a state court grants or denies a move-away request. These factors are:

• The reasons given for the move
• 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
• Whether the child will receive educational, health, and leisure opportunities at least equal to that which is available here
• 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 here 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
• Any other factor bearing on the child's interest

The court recognized that these factors may not be applicable in every case and that some will be more important than others. For example, if the child has special needs that cannot be adequately met in the new state, then the court may have ample grounds to deny the custodial parent's relocation application.

Joint Custody and Relocation

If the parents share joint physical custody over the children and one of the parent's wants to relocate to another state with the children, a different legal standard applies. In these cases, the parent seeking to move must prove to the court why a change in custody is necessary. This, in turn, requires the parent to prove sufficient changed circumstances justifying the custodial change.

In joint custody cases, the parent's reasons for the relocation are not taken into account. Instead, the court focuses solely on the best interests of the child standard. Accordingly, the parent seeking to move must be able to show that the child's best interests will be better served by awarding the relocating parent primary physical custody.

Since relocation applications involving joint custody effectively are petitions for a change in custody, these cases generally are more difficult than other relocation cases.

Penalties for Unauthorized Relocations

Parents who do not obtain permission from the other parent or a court order prior to relocating out of state may be subject to criminal penalties. Under NJSA § 2C:13-4, parents who take or detain their children with the purpose of concealing them from the other parent may be charged with interference with custody. This crime carries severe penalties, including three to five years in prison and/or a $7500 fine.

Parents who relocate without permission or a valid court order to another country may be charged with a more serious second degree crime under NJSA § 2C:13-4, which carries a five to 10 year prison sentence and up to a $1,000,000 fine.

Contact an Experienced Family Law Attorney

For more information on seeking a relocation order or challenging an out-of-state move by your child's other parent, contact a knowledgeable attorney.