One of the most challenging issues that we face as family law attorneys develops when a parent wishes to physically relocate a child outside of the State of New Jersey. This desire often becomes a hotly contested issue due to the fact that without consent of the other party or an Order of the Court, a parent cannot relocate outside the State with an unemancipated child.
If the issue of relocation cannot be settled between the parties through a consent agreement, the first factor that needs to be examined is the actual physical custodial relationship between the child(ren) and the parents.
This distinction is important because our case law differentiates between a relocation scenario in which the parents exercise a shared parenting arrangement vs. a custodial relationship in which one parent is responsible for the majority of the child rearing responsibilities. This classification is critical in establishing the legal burden that you may have to overcome (or defend) when preparing your relocation case.
If you are the custodial parent asking to relocate outside of the State of New Jersey, you have a burden to initially produce evidence to the court that (1) there is a good faith reason for the requested move and (2) that the move will not be inimical to the child’s interest. While not an identified prong, it is required that a good faith parenting plan be submitted regarding the non-moving parent’s rights to visitation with the children.
Once the custodial parent has presented evidence regarding the good faith reason for the move and it is forwarded that the move will not be inimical to the child’s interest, the burden of going forward then shifts to the non-custodial parent who must produce evidence opposing the move.
Regardless of whether you are the party requesting or defending against a proposed relocation, our Supreme Court has identified factors that must be examined in the context of the whether the move is inimical to the child’s interest. The Court set forth twelve factors that are relevant in deciding whether or not a relocation is appropriate. Some highlighted factors include the reason for the move and for opposition to the move; the health, education, and other needs of the child and whether those needs can be equally met in the new location; whether visitation and communication schedules can be developed to permit a full and continuous relationship with the non-custodial parent; the effect of the move of extended family members of the parties and the likelihood that the custodial parent will continue to foster the non-custodial parent’s relationship.
Due to the “all or nothing” nature of a relocation request, this type of litigation creates a unique set of circumstances that often requires judicial intervention. As a practical tip, it is important from the outset that a party make their intentions clear regarding their relocation plan or opposition. Proper preparation and attention to detail is necessary to effectively prepare your case to meet the criteria and factors set forth by the controlling case law.