Primary custodians in New Jersey must obtain permission from either the non-custodial parent or the court prior to moving out of state with their children. Although a long distance move typically disrupts the existing parenting plan, most parents are able to negotiate an arrangement in which the non-custodial parent maintains consistent contact with the children. If the parents are unable to reach to an agreement, the parent who wishes to move would need to file a motion with the family court.
Relocation motions are complicated enough as is, but the situation becomes even more perplexing when parents share physical custody (joint custody). In a primary custodial plan, one parent has the child most of the time, so the child being moved to another state is unlikely to cause any dramatic changes in the amount of visitation time. However, relocation under a joint custody plan would inevitably result in primary custody being given to the moving parent, which makes these cases more about a transfer in custody, rather than a motion for relocation.
This simple, yet crucial factor was addressed in Baures v. Lewis, the 2001 case which resulted in the Baures test -- a set of 12 factors that must be considered when deciding relocation motions for parents with shared physical custody. The Bauers test, first and foremost, recognizes that a relocation for parents with joint custody must be treated as a transfer of custody. Thus, the courts must rely primarily on the best interest standard, along with factors that are specifically related to the move. Factors pertaining to the child's best interest include the child's age and preference, the effect the move would have on his or her extended family relationships, and whether the child is about to enter his or her senior year in high
school. The other factors are similar to the ones examined for standard relocation hearings, which include the reason for the move, the reasons for opposing the move, and whether the child will receive education, healthcare and social opportunities that are comparable to the ones he or she is currently receiving.
Divorces often bring about life-altering circumstances, including the need or opportunity to move to another state. The situation is much more complicated for divorced parents than most other individuals, which is why it's important to seek legal advice from an experienced family law attorney. Legal representation is especially important if you share physical custody, in which case you will need to make a convincing argument for why you should be given primary custody. You should also be aware that there is no burden on your former spouse to prove that the move would violate his or her parental rights. Hence, it would be completely on you to offer a fair and workable visitation plan, in addition to proving that the move would be in your child's best interest. For more information on your custodial rights and legal options, please speak with the attorneys of Villani & DeLuca, P.C.