By: Justin M. Smigelsky, Esq.
Following a divorce, removal of a minor child from the State of New Jersey by the custodial parent is governed by N.J.S.A. 9:2-2, which, in pertinent part, provides:
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 requirement that children of divorced parents are not to be removed from this jurisdiction without either the consent of the non-custodial parent or for cause shown is subject to the exercise of judicial discretion. The task of the Court in achieving the purpose of N.J.S.A. 9:2-2 is to balance the right of the child and the non-custodial parent with the right of a custodial parent to seek a better life and, in striking that balance, the Court must be guided by what is best for the child. An appropriate disposition of a removal application is not necessarily the one that satisfies one parent or even splits the difference between the parents, but the one that will not be detrimental to the child.
Pursuant to the landmark decision of Baures v. Lewis, 167 N.J. 91, 116 (2001), the preliminary question in any case in which a parent seeks to relocate with a child is “whether it is a removal case or whether by virtue of the arrangement between the parties, it is actually a motion for a change in custody.” It is important to note that, in determining the custodial arrangement between the parties, the labels used in the Marital Settlement Agreement or divorce decree are not dispositive.
Where physical custody of the child is jointly shared, the parent seeking to relocate must demonstrate changed circumstances sufficient to warrant obtaining primary physical custody of the child. Where a parent already exercises primary custody, he or she must only demonstrate (1) a good faith reason for the move, and (2) that the move is not inimical to the child’s interests. As set forth in Baures, in assessing whether an application for removal has been made in good faith and whether the move will not be inimical to the child’s best interests, the Court should consider the following factors, with the amount of relevancy and weight given determined by the circumstances of each case:
- the reasons given for the move;
- the reasons given for the opposition;
- the past history of dealings between the parties insofar as it bears on the reasons advanced by both parties for supporting and opposing the move;
- whether the child will receive educational, health and leisure opportunities at least equal to what is available here;
- any special needs or talents of the child that require accommodation and whether such accommodation or its equivalent is available in the new location;
- whether a visitation and communication schedule can be developed that will allow the noncustodial 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 noncustodial parent if the move is allowed;
- the effect of the move on extended family relationships here and in the new location;
- if the child is of age, his or her preference;
- whether the child is entering his or her senior year in high school at which point he or she should generally not be moved until graduation without his or her consent;
- whether the noncustodial parent has the ability to relocate; and
- any other factor bearing on the child’s interest.
In a 2016 reported decision of the Appellate Division, the Appellate Court addressed a non-relocation provision contained within the parties’ recently executed Marital Settlement Agreement and the impact of a spouse’s negotiation for same in bad faith. In Bisbing v. Bisbing, 445 N.J. Super 207, the parties agreed to joint legal custody with primary residential custody to the wife so long as she did not remove the children from the State, to live within twenty (20) miles of each other in New Jersey, and that neither party could remove the children from New Jersey without consent of the other party. However, nine (9) months after the Judgment of Divorce, the wife informed her ex-husband that she desired to relocate the children from New Jersey to Utah. In a well-reasoned decision, the Appellate Division determined that a plenary hearing was necessary and, if the negotiation for the non-relocation provision was in bad faith, the more-stringent best-interests-of-the-child standard would apply, as opposed to the Baures factors. On the other hand, if the party alleging bad faith could not demonstrate that bad faith negotiations took place, one of the following tests would be applied:
- If wife could demonstrate a substantial and unanticipated change in circumstances to warrant avoidance of the agreed-upon non-relocation provision, the Baures analysis would be appropriate; or
- If wife failed to demonstrate a substantial and unanticipated change in circumstances, the Court must determine the best interests of the children.
NOTE: At the time of this article, Bisbing is on appeal to the New Jersey Supreme Court, and expected to be argued in March of 2017.
This article is for information purposes only, and is neither legal advice nor the creation of an attorney client relationship. If you have any questions in regards to divorce in New Jersey, alimony, child support, equitable distribution, or family law, you may wish to consult with an experienced family law attorney.
Family Law Practice Areas: Divorce, equitable distribution of assets and liabilities, alimony, domestic violence, child custody, child support, parenting time, emancipation applications, removal applications, Marital Settlement Agreements, post-judgment enforcement and modification applications
Timothy J. Little, P.C. is a full-service law firm with offices in Woodbridge and Chesterfield, New Jersey. Timothy J. Little, P.C. represents individuals, families and businesses throughout New Jersey including Middlesex County (Old Bridge, Woodbridge, Sayreville, East Brunswick, Spotswood, Perth Amboy, Dunellen, Colonia, Sewaren, Iselin, Avenel, Fords, Keasbey, Menlo Park, Port Reading, South Amboy, Monroe, Edison, Carteret, Cranbury, Helmetta, South River, Milltown, Highland Park, Jamesburg, Laurence Harbor), Monmouth County (Hazlet, Aberdeen, Matawan, Middletown, Freehold), Union County, Ocean County, Somerset County, and Burlington County. If you have any questions or concerns regarding family law or divorce, please contact the attorneys at Timothy J. Little, P.C.
Justin M. Smigelsky, Esq. / Timothy J. Little, P.C. / 2017 – All Rights Reserved
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