Picture this - you just settled the issues of custody and parenting time with your former spouse, and now she suddenly wants to move with the kids to another state, or to the complete opposite side of New Jersey (for those living in North Jersey, the trip down to South Jersey can take far longer than driving over the border into Manhattan). You had no idea that this was going to happen and, perhaps, your ex-spouse even played coy about her plans for where she was going to live once the case is over. What do you do? Are you stuck based on what you agreed to in the settlement agreement?
Custody disputes and negotiations are oftentimes the most emotionally charged aspects of a divorce matter. Decisions as to both legal custody (major decision making impact the child’s health, safety, and general welfare), and residential custody (where the child will live), are never to be taken lightly. During the course of a custody dispute, the issue of relocation will commonly arise so as to determine whether either parent has any plans or intentions to move with the children after the divorce to an area different from where they lived during the marriage.
Importantly, however, a custodial expert and, if the matter goes to trial, a family part judge, must first address the issue of custody and parenting time before moving onto the issue of relocation. In fact, the Supreme Court provided in its seminal case of Baures v. Lewis that “A removal case is entirely different from an initial custody determination. When initial custody is decided, either by judicial ruling or by settlement, the ultimate judgment is squarely dependent on what is in the child’s best interests . . . Whoever can better advance the child’s interests will be awarded the status of custodial parent.”
What, then, is the importance of the initial custody determination on relocation? Simply put - it is very important, because the legal standard that a court will utilize to determine whether a parent should be able to relocate with the children will depend, in large part, on whether that parent is a primary residential custodian, or joint residential custodian.
Without going into great detail, a primary residential custodian’s request to relocate interstate is analyzed under a standard more favorable to that parent, where the requesting parent need only show that there is 1) a good faith reason for the move, and 2) the proposed move will not be inimical to the child’s interests. Within that standard, a court will look at several factors to determine whether the relocation request should be granted.
Even more liberal is the court’s view towards a primary residential custodian’s request to relocate within New Jersey – intrastate - to the point that it is not even considered a “removal.” Approval to move to another part of the State is not even required! Rather, the relocation may constitute what is known as a “substantial change in circumstances” meriting a modification to the existing cusodial and parenting time arrangement. If the move is inimical to the child’s best interests, the factors used to analyze an interstate relocation request come into play to determine whether a modification should occur. By great contrast, if the parents are joint residential custodians, the request to relocate will be analyzed under the far more balanced “best interests of the child” analysis.
It should come as no surprise, as a result, that some litigants will actually seek to deceive (or fraudulently induce) their ex-spouse during the course of custody and parenting time negotiations so as to obtain the primary residential custodian designation that will then render far easier a subsequent request to relocate. Thus, while dad is under the belief that the kids are going to be living with mom somewhere near him, or near where they lived together during the marriage, mom may secretly have other plans in mind.
Not many reported cases have dealt with this issue. In Shea v. Shea, a 2005 decision, mom sought to relocate to another state merely 3 months after the parties resolved custody and parenting time. Dad objected, asserting that mom had used the custody negotiations as a “subterfuge in that she planned to seek removal shortly after the divorce was entered.” The court held that dad could attempt to prove his allegations against mom if she fulfilled her initial burden to procure the court’s consent to the interstate removal – good faith and the move not being inimical to the child’s interests. The same process would similarly occur in the course of an intrastate relocation request. The court provided that if a determination was made that the parent requesting relocation sought such a strategic advantage against the other parent, then the court should return the non-custodial parent to equal footing with the custodial parent and review the request for relocation under the “best interests analysis” referenced above.
Thus, while it seems like a mountain to climb after an agreement has already been reached on custody and parenting time, the parent opposing relocation under such circumstances does have the ability to protect himself and his relationship with the children by proving what the other parent has done.
Robert Epstein 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.