Child Relocation Laws: Can a Custodial Parent Move Out of State?
It’s common for individuals to want to start over once their divorce is finalized, and this typically includes plans to relocate from the state and start fresh in a brand-new location. But if you’re hoping to relocate, there are a few things you should keep in mind, including child custody relocation laws. Under N.J.S.A. 9:2-2, children may not be removed out of New Jersey without the consent of both parents, unless the court, upon cause shown, shall otherwise order. This means that you must either have the other parent’s permission to relocate from NJ with the child or from the court.
Until 2017, it was relatively easy for a custodial parent (the Parent of Primary Residence) to move out of state with their child. The parent seeking to relocate had to show (i) they have a legitimate reason for the move, and (ii) that the move will not adversely affect the child. Baures v. Lewis, 167 N.J. 91 (2001). The reasoning behind this leniency was the idea that essentially what was good for the custodial parent was good for the child as well.
All that changed in 2017, when the NJ Supreme Court decided Bisbing v. Bisbing, 230 N.J. 309 (2017). In Bisbing, at the time of the divorce the parents had twin seven-year-old daughters. Shortly after the divorce, the mother intended to marry a Utah resident she was dating and asked the father for permission to relocate with the children to Utah. The children’s father refused. The trial court granted the mother’s request for child custody relocation, holding that her request was made in good faith and that the relocation would not be harmful to the children. The father appealed and the case made its way to the New Jersey Supreme Court. The New Jersey Supreme Court drastically changed the former criteria for deciding whether to allow a parent to relocate with their child out of New Jersey.
How Far Can You Move With Joint Custody?
Technically you can relocate anywhere within the state of New Jersey with your children as long as your move does not significantly impact the current parenting plan. For example, if the other parent sees your children every other weekend from Friday to Sunday and has two dinners per week, and you relocate from Morristown to Cherry Hill, that parenting schedule would be significantly impacted by the child custody relocation. In that situation, you could challenge the relocation because it would trigger a change in circumstance, and you could even seek a change in physical custody if the other parent insists on moving forward with a relocation of that distance.
Shorter distance moves within the state of New Jersey with your children do not require permission from the other parent unless there is some court order or agreement in place stating otherwise. It is always best though to consult with an experienced matrimonial attorney before moving with your children.
Any attempt to move with your children outside the state of New Jersey are prohibited unless the other parent consents or you have permission from the court.
If I Have Physical Custody, Can I Move?
The short answer to this question regarding child relocation laws is, it depends. The standard is not physical custody but rather whether the move is in the child’s best interest, not your best interest. Gaining court approval of a move that impedes the relationship with the other parent can be difficult.
How To Get Permission To Move Out Of State With Child
The New Jersey Supreme Court in Bisbing set out the standard for getting court permission to move out of state with your child. The court reasoned that the fairest way to decide the issue of removing a child from the state is to apply the same standard used in determining custody matters in general — the best interests of the child. In effect, the Bisbing court made it more difficult for a parent to move out of state with the child because the standard was no longer why the parent wanted to move and whether the move would harm the child, but rather what was ultimately in the best interest of the child.
The “best interests” standard is applied in all child custody relocation cases where parents have joint legal custody, regardless of whether a parent is the Parent of Primary Residence or the Parent of Alternate Residence, or the parents equally share physical custody.
The statutory criteria for determining what is in the child’s best interest is found in N.J.S.A. 9:2-4:
- 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 which isn’t based on substantiated abuse
- the interaction and relationship of the child with its parents and siblings
- any history of domestic violence
- the safety of the child and the safety of either parent from physical abuse by the other parent
- the child’s preference, when the child has the capacity to make an intelligent decision
- the child’s needs
- the stability of the home environment offered by the parents
- the quality and continuity of the child’s education
- the parents’ fitness to exercise custody
- the geographical proximity of the parents’ homes
- the extent and quality of the time spent with the child before or after the separation
- the parents’ employment responsibilities, and
- the age and number of the children. (N.J.S.A. 9:2-4.)
Child relocation laws are complicated and mistakes can be made if a relocation case is not prepared properly. If you are contemplating moving out of state with your child, please contact us for a consultation to discuss your child custody relocation case.