In the newly published decision of Benjamin v. Benjamin out of the Ocean County Family Part, which has released several reported decisions within the past few years, the court held that having a guaranteed job in another state is not a mandatory prerequisite for it to approve a custodial parent’s request to relocate to another state with a child born. The court did hold, however, that the "likelihood that the custodial parent can provide the child with a financially stable household in the new state, including obtaining employment as necessary is relevant in determining whether a proposed relocation is reasonable or inimical to a child’s interests."
On first blush, the court’s statement that the primary residential custodian has the right to seek relocation almost suggests that such a right is automatic. A closer read of the decision and its ultimate holding, however, indicates that the standard fits within the existing relocation standard.
The parties were divorced in 2008 and agreed in a settlement agreement that mom would be the child’s primary residential custodian. In 2012, mom filed an application to relocate with the child to North Carolina, which dad objected to by filing a cross motion seeking a transfer to him of residential custody. One of dad’s arguments was that mom did not have a job in North Carolina, which would inure to the child’s financial detriment.
Noting that there is no express requirement of employment in the new location, the court went through the relocation factors provided by the Supreme Court in Baures v. Lewis, which apply when considering the request of a primary custodian to relocate (notably, the standard is simply the best interests of the child when the parents have joint residential custody and one parent seeks to relocate with the child).
The requesting parent must prove that 1) there is a good faith reason for the move, and 2) the proposed move will not be inimical to the child’s interests. Within that standard, the court must analyze the following factors:
1. the reasons given for the move;
2. the reasons given for the opposition;
3. 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;
4. whether the child will receive educational, health and leisure opportunities at least equal to what is available here;
5. any special needs or talents of the child;
6. whether a parenting time schedule and communication schedule can be developed that will allow the non-custodial parent to maintain a full and continuous relationship with the child;
7. the likelihood that the custodial parent will continue to foster the child’s relationship with the non-custodial parent if the move is allowed;
8. the effect of the move on extended family relationships here and in 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 in high school at which point he or she should generally not be moved until graduation without his or her consent;
11. whether the non-custodial parent has the ability to relocate; and
12. any other factor bearing on the child’s interest.
In addressing the requirement of procuring employment in the new state, the trial court took judicial notice of the economic downturn and rationally provided:
As noted, nowhere on this list is there a specific, mandatory requirement of guaranteed, out-of-state employment before a court can grant a removal application. For certain, there are many hypothetical factual scenarios where there would be little practical sense in imposing such an absolute pre-condition upon every custodial parent’s ability to move. For example, if a moving parent (a) has significant financial support from other family members such as parents or a new spouse, or (b) has traditionally been a homemaker with young children and no remarkable work history, or (c) is disabled and out of the labor force, or (d) is independently wealthy, then in such instances there may be no compelling basis to require mandatory employment for such an applicant.
Even in cases where none of the above scenarios exist, however, there is still a fundamental problem with imposing a requirement upon every moving party to first demonstrate a guaranteed offer of employment in the new state. As the parties in this case have learned firsthand, there is often an unfortunate time gap of many months between the date a custodial parent files a motion for relocation and the date a court can actually adjudicate the matter with finality. Because of this gap, it is often highly impractical for a custodial parent to obtain a concrete job offer from an out-of-state employer when he or she does not even know if and when court approved relocation may occur.
Ultimately, the trial court created a somewhat new standard by which to analyze the financial impact of a primary custodian’s relocation, even though, at the end of the day, the standard falls within the broad standards of the factors enunciated above. The court provided:
The most practical and relevant inquiry is not whether the moving parent has a guaranteed job, but rather whether she has a reasonable plan for providing the child in her care with an economically stable home in the new state. In such an analysis, a party’s employability, and work history are relevant to the overall financial reasonableness of the custodial parent’s relocation plan. As set forth in Baures, supra, 167 N.J. at 117, the final factor for consideration is “any other factor bearing on the child’s interest.” This extremely broad language permits a court of equity to exercise its discretion to consider points and issues beyond those expressly listed in Baures.
Interestingly, though, was the court’s granting of mom’s relocation application based on what appeared to be a very uncertain degree of financial stability:
As noted, defendant does not have guaranteed employment in North Carolina. However, the court finds that she is reasonably likely to obtain suitable employment in North Carolina and create a financially responsible home life there if given a reasonable opportunity to do so. The court reaches this conclusion for the following reasons: First, she has a longtime history of steady, stable employment in New Jersey, reflecting positively upon her financial responsibility. Second, she has provided evidence that during the course of this case, she sought and was able to obtain at least one offer of reasonable employment in North Carolina, which would have provided her with a higher starting salary than she presently makes at her New Jersey job. Third, she has marketable management skills. Fourth, she presents as an intelligent and articulate individual who is focused and who has a record of responsibly caring for the child in her court ordered primary care, both financially and otherwise.
The court then noted, however, that mom had a reasonable financial plan because her current husband had a successful career as a department store chain manager with potential employment opportunities in another state; mom had close relatives living in North Carolina who could provide financial assistance and with whom the child had spent a substantial amount of time and ; and, a bit curiously, mom planned on purchasing a home. As to the last point, it appears that even the thought of financial stability, rather than the potential inability to fulfill that plan, was enough for the court.
Ultimately, the financial situation awaiting the parent and child seeking relocation will always be considered by the court. "Ifs" "whens" and "maybes" of what that financial situation may be at some point after relocation, though, is a difficult consideration since, as the trial court provided, there is no "crystal ball" to show what will happen.
RobertEpstein is an associate in Fox Rothschild LLP’s Family Law Practice Group. Robert practices in the firm’s Roseland, New Jersey office and can be reached at (973) 994-7526, or firstname.lastname@example.org.