Looking to Move Out of State or Keep Your Child From Being Relocated – Here’s What You Need to Know About the New Law on Relocation.
In August, the New Jersey Supreme Court departed from the legal standard that had been in place for 16 years as it pertains to relocation by a custodial parent from the State of New Jersey. Bisbing v. Bisbing, 2017 N.J. LEXIS 830, 2017 WL 3392717 (N.J. Aug. 8, 2017). If you have a potential relocation issue in your divorce or custody case, it is important that you educate yourself as to how this change in the law impacts you.
Here is an overview of the basics:
1. You cannot remove your child from the State of New Jersey without an Order of the Court or Consent of the Other Parent:
N.J.S.A 9:2-2 entitled: “Custody of children of divorced or separated parents within jurisdiction of Superior Court; removal from jurisdiction; consent; security”
When the Superior Court has jurisdiction over the custody and maintenance of the minor children of parents divorced, separated or living separate, and such children are natives of this State, or have resided five years within its limits, they shall not be removed out of its jurisdiction against their own consent, if of suitable age to signify the same, nor while under that age without the consent of both parents, unless the court, upon cause shown, shall otherwise order. The court, upon application of any person in behalf of such minors, may require such security and issue such writs and processes as shall be deemed proper to effect the purposes of this section.
2. The party seeking to relocate must show “cause” before a court will permit the removal of a child from the State of New Jersey:
N.J.S.A. 9:2-2 requires a showing of “cause” by the party seeking relocation, before a court will authorize the permanent removal of a child to another state without consent of both parents.
3. Best Interests of the Child Standard Now Governs (Old Standard (Baures v. Lewis) v. New Standard (Bisbing v. Bisbing)
The old standard set forth under Baures v. Lewis involved the application by the court of a two-prong test in situations in which there is a primary custodial parent, which was (1) that there is a good faith reason for the move and (2) that the move would not be inimical to the best interests of the child. 167 N.J. 91 (2001). The New Jersey Supreme Court in Bisbing departed from the Baures two-part test and rather indicated that in all relocation disputes where the parties share joint legal custody that, “the trial court should decide whether there is “cause” under N.J.S.A. 9:2–2 to authorize a child’s relocation out of state by weighing the factors set forth in N.J.S.A. 9:2–4, and other relevant considerations, and determining whether the relocation is in the child’s best interests.” Bisbing, [emphasis added] 2017 N.J. LEXIS 830, 40.
The Court in Bisbing, indicates that, “[t]he Legislature required a showing of "cause" for an out-of-state relocation under N.J.S.A. 9:2-2 in order ‘to preserve the rights of the noncustodial parent and the child to maintain and develop their familial relationship.’” (citing to Holder v. Polanski, 111 N.J. 344, 350, 544 A.2d 852 (1988) (quoting Cooper v. Cooper, 99 N.J. 42, 50, 491 A.2d 606 (1984)). In determining whether the relocation is in the child’s best interests, the Court has indicated that “the trial court should decide whether there is “cause” under N.J.S.A. 9:2–2 to authorize a child’s relocation out of state by weighing the factors set forth in N.J.S.A. 9:2–4, and other relevant considerations.” The factors to be considered under N.J.S.A. 9:2-4 are as follows:
the parents’ ability to agree, communicate and cooperate in matters relating to the child; the parents’ willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse; the interaction and relationship of the child with its parents and siblings; the history of domestic violence, if any; the safety of the child and the safety of either parent from physical abuse by the other parent; the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision; the needs of the child; the stability of the home environment offered; the quality and continuity of the child’s education; the fitness of the parents; the geographical proximity of the parents’ homes; the extent and quality of the time spent with the child prior to or subsequent to the separation; the parents’ employment responsibilities; and the age and number of the children. A parent shall not be deemed unfit unless the parents’ conduct has a substantial adverse effect on the child.
Relocation issues present some of the most difficult family law cases because of the competing needs to preserve the child’s relationship with their parent at the same time taking into consideration the potential benefits to the child of a relocation. It is important to understand how this new law impacts you in negotiating and litigating your custody case.
For more information about relocation or any other custody issues, please contact Georgia Fraser, Esq. of Fraser Family Law Office LLC. 609-223-2099.