One of the most vexing areas of family law practice involves applications by a custodial parent to relocate out of state with the child(ren) over the objection of the other parent.  The legal standard for relocation has evolved over the years and is currently encapsulated in Baures v. Lewis,  decided by the New Jersey Supreme Court in 2009. In Baures, the Court  held that a moving party bears the burden of proof  of proving that (1) there is a good faith reason for the proposed move, and (2) that the proposed move will not be inimical to the child’s interests. The Court went on to recite twelve factors to be considered. Interestingly, nowhere on this list is there any specific, mandatory requirement of guaranteed out-of-state employment.
Against that backdrop, the Superior Court of New Jersey  was recently called upon to decide whether a parent seeking to relocate and who had existing employment in New Jersey, must have another job in place in the new state before the court would permit relocation.  In Benjamin v. Benjamin (FM-15-1212-08-N; approved for publication February 4, 2013), the trial court held that having a guaranteed job in another state is not mandatory prerequisite for relocation. The court’s reasoning included recognition of  “…the unfortunate time gap of many months between the date a custodial parent files a motion for relocation and the date a court can actually adjudicate the matter with finality [and] because of this gap, it is often highly impractical for a custodial parent to obtain a concrete job offer from an out-of-state employer when he or she does not even know if and when court-approved relocation may occur”. The court also took judicial notice of the “severe economic downturn…where supply often far exceeds demand in countless fields”  [ and that] an employer might have very little incentive to hire this applicant over other candidates who are ready, willing and able to start work immediately”.   Instead, the Benjamin court focused on the parent’s “employability and work history”, as opposed to “ an unreasonably risky, impulsive, spur of the moment decision.”
Based on the above and Ms. Benjamin’s  satisfaction of other Baures factors, the court permitted her relocation with the parties’ child to North Carolina. The Benjamin case is a cogent explanation  of current relocation law which is, in this author’s opinion,  potentially open to re-examination based on advances in social science research. How and when such re-examination occurs remains to be developed on a case-by-case basis.

John Eory is the Co-Chair of Stark & Stark’s Divorce Group in the Lawrenceville, New Jersey office. For questions, please contact Mr. Eory.