Child Custody, Visitation & Relocation


N.J.S.A. 9:2-2 provides that a child of parents “divorced, separated or living separate,” where the children are “natives” of New Jersey, or have resided for five years within its limits, shall not be removed from the state “against their own consent, if of suitable age to signify the same, nor while under that age without consent of both parties, unless the court, upon cause shown shall otherwise order.” As a result a parent seeking to interstate with a child must procure either the other parent’s consent or a court order allowing the move.

To determine what legal standard applies when faced with such an application, the first step “considers the type of parenting arrangement between the parties and whether the matter is actually an application for a change in custody as opposed to a removal case.” Morgan vs. Morgan, 205 N.J. 50, 64 (2011).

If the primary custodial parent’s motion is truly for removal, whereby there does not exist a joint residential custody arrangement, then the factors applied are those enunciated by the Supreme Court of New Jersey in the seminal Baures vs. Lewis, 167 N.J. 91 (2000). There, the court concluded that the custodial must prove the relocation request is based on a good faith reason and the move itself is not inimical to the child’s best interest. The factors that are considered are as follows:

  1. The reasons given for the move;
  2. The reason give for the opposition;
  3. The past history of dealings between the parties that insofar as its because of the reason advanced by both parties for supporting or opposing the move;
  4. Whether the child will receive educational, health and leisure opportunities equal to what is available here;
  5. Any special needs or talents of the child require accommodation and whether such accommodation or its equivalent is available in the new location;
  6. Whether visitation and communication schedule can be developed that will allow the noncustodial parent to maintain full and continuous relationship with the child;
  7. The likelihood the custodial parent will continue to foster the child’s relationship with the noncustodial parent if the move is allowed;
  8. The effect of the move on extended family relationships here and the new location;
  9. If the child is of age, his or her preference;
  10. Whether the child is entering his or her senior year of high school at the point he or she should generally not be moved until graduation without his or her consent;
  11. Whether noncustodial parent has the ability to relocate, and
  12. Any other factor bearing on the child’s interest.

While the custodial parent’s burden may seem daunting, it actually favors a primary caretaker’s ability to relocate with the child, even outside its own borders, for reasons based on psychological studies, common sense and public policy. In a situation where the parents “truly share both physical and legal custody,: however, the analysis no longer favors one parent over the other since the application is really one for change in custody. As a result, “the best interests of the child” is the core concern, O’Connor vs. O’Connor, 349 N.J. Super. 381 (App. Div. 2002).

Acknowledging the presumptive favoritism afforded the custodial parent under the Baures analysis, and in an effort to procure the more balanced “best interests” standard, a noncustodial parent may argue that a de-facto joint residential custody agreement exits. Notably New Jersey courts have expressed the true joint residential custody agreements are rare.

Reference: Robert A. Epstein, New Jersey Law Journal, 222 N.J.L.J. 3159 (October 3, 2016)

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