Parental relocation is a difficult issue for parents and courts to resolve. If one parent wants to move over the objection of the other parent, the moving parent must convince the court that he/she should be able to relocate with the children over the non-custodial parent’s objection. Until recently, there was a significant difference in New Jersey law for custodial parents intending to relocate out-of-state versus custodial parents intending to relocate within New Jersey. Now, according to the Appellate Division in the case of A.J. v. R.J., a custodial parent who intends to move must demonstrate that the move is in the child’s best interest, regardless of whether the move is in-state or out-of-state.
In A.J. v. R.J., the parents entered into a Marital Settlement Agreement giving primary custody to the Mother and establishing parenting time with the Father. Subsequently, the Mother moved with the children from Elizabeth to Mount Holly, New Jersey, 62 miles from the Father, without obtaining his permission, and with little notice of the move. After the move, the Father filed an emergency application with the Court to bar the relocation and modify custody. The trial judge ordered the Mother to return with the children and reside within fifteen miles of the Father. When the Mother failed to do so, the trial judge transferred custody to the Father as a sanction against the Mother.
The Appellate Division reversed, agreeing with the Mother that the trial court should not have transferred custody without determining that the transfer was in the children’s best interests. The Appellate Division noted that although the trial court had authority to transfer custody to the Father as a sanction against the Mother, it erred by changing custody without holding a best-interests hearing.
Because custody matters directly impact the welfare of children, a best-interests hearing and findings pursuant to New Jersey law (N.J.S.A. 9:2-4) are required where a court transfers custody as a sanction. This affords both parents the opportunity to argue whether a transfer of custody is in the best interests of the children and requires the court to make the necessary statutory findings.
The Appellate Division also clarified the standard to be used in making a determination whether relocation is in the best interests of the child. The trial court must take into account the following factors as set forth 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 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 who wishes to relocate needs to establish good cause in accordance with New Jersey law and in advance of any planned move. As demonstrated in A.J. v. R.J., the court has broad power to sanction a parent who fails to comply with these provisions.
Whether you are the parent attempting to relocate or objecting to the relocation, contact us for assistance in preparing and presenting a strong case to protect your rights and your child’s. At Donahue, Hagan, Klein & Weisberg, LLC, we have extensive experience in handling both sides of relocation matters.