There is certainly no denying that America as a whole has been faced with trying economic times over the past decade. And with the challenges to our economy, many single parents have been forced to make tough decisions about their jobs, their finances, and their homes. One of the most frequently-visited issues in New Jersey family law in recent years has been the issue of a custodial parent who wishes to relocate out of the State of New Jersey over the objection of the non-custodial parent. These moves are frequently caused due to loss of employment here in New Jersey or the opportunity for better employment elsewhere. While there may be many reasons a custodial parent may wish to relocate out of New Jersey, the fact remains that without the written consent of the non-custodial parent to the move or an Order of the court permitting the move, a custodial parent is not legally permitted to permanently relocate a child out of New Jersey.
Fortunately, we have an established body of law in this State which addresses these situations. In New Jersey, relocation matters are governed by Baures v. Lewis, 167 N.J. 91 (2001). Baures lays out the initial burden on the moving party and gives the court a list of non-exclusive factors to consider in deciding whether or not to grant a request to relocate out of the State of New Jersey with a child over the objection of the non-custodial parent.
The moving party in what we refer to as a “Baures Motion” will always bear the first burden in making his or her “prima facie case” for relocation. This burden means that the moving party must show a “good faith reason” for the move. This good faith reason can be many things. It may be a job opportunity or family support which does not exist in New Jersey. It may even be medical in nature if the moving party can show that either they or the child will benefit from a treatment or therapy which is not available in New Jersey. It could be education-related if the child has special educational needs which will be better met elsewhere. There are any number of good faith reasons the moving party might assert in order to meet their initial burden of proof. The moving party must also propose a parenting time plan for the non-custodial parent. This parenting time plan should be very specific and detail-oriented, but it does not need to be identical to the one currently in place at the time of filing. Once the moving party has made their case, the burden falls upon the opposing party to demonstrate that the proposed good faith reason is not genuine or concrete. Or the opposing party might need to point out incorrect parts of the moving party’s motion or statements or try and show that an emotional or even physical harm could befall the child if he or she is allowed to leave the State with the other parent. Showing that the non-custodial parent’s relationship with the child will also suffer due to the move may be important.
In addition to scrutinizing the moving party’s reason for the requested move, the court will also consider additional factors in making its decision as to whether or not to grant the request for relocation. These factors are:
- The reasons the custodial parent wants to move;
- The reasons the non-custodial parent wants the child to stay in New Jersey;
- The past history of court and personal dealings between the parents;
- The educational, health, and recreational resources available to the child in each state;
- The resources to address any special needs or talents of the child in each state;
- 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;
- The effect of the move on extended family relationships here and in the new location;
- The preference of the child, if the child is a teenager;
- Whether the child is entering his or her senior year in high school;
- Whether the non-custodial parent has the ability to relocate; and
- Any other factor bearing on the child’s interest.
Once the court has evaluated the cases presented by each side and weighed their requests in light of the above factors, a decision will be made to either grant or deny the request for relocation. Baures motions can be tough to win if they are filed frivolously and they can be tough to defend against if the moving party has a legitimate prima facie case. They are very detail-oriented motions and the past conduct of the parties between each other can be a very crucial factor in the eyes of the court. They will also, if successful, generally make major changes to parenting time for both parents. Along with this change in parenting time, there will in general be a very serious change with regard to child support paid from one party to the other as well.
If you are planning a move out of New Jersey, or even across a large distance *within* New Jersey, and you have children of whom another parent shares custody, or if you are the non-custodial parent and have been served with a motion seeking to relocate your children out of the State or across a large distance within the State, please call us for a confidential consultation. At Kerstetter Law, LLC, we take pride in providing compassionate and skilled legal service to all of our family law clients.