A very common question asked by divorced parents is whether the custodial parent has the right to move with the child either to another state (interstate) or to another location within New Jersey (intrastate). In light of these questions, a review of the applicable legal standards for interstate and intrastate moves should provide some guidance.
N.J.S.A. 9:2-2 is designed to protect the parenting relationship between a child and a noncustodial parent when the custodial parent seeks to move to another state. In light of 9:2-2, the New Jersey Supreme Court in its seminal decision of Baures v. Lewis, 167 N.J. 91 (2001) developed a set of 12 factors to consider when reviewing a custodial parent’s removal application (which have also been applied to an international move). These factors are:
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 that require accommodation and whether such accommodation or its equivalent is available in the new location;
6. 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;
7. The likelihood that the custodial parent will continue to foster the child’s relationship with the noncustodial 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 noncustodial parent has the ability to relocate; and
12. Any other factor bearing on the child’s interest.
The Court in Baures noted that a mere change in the noncustodial parent’s visitation, such as a reduction, is not reason enough alone to deny a custodial parent’s removal application. Rather, it is simply one factor for a court to consider when determining if the custodial parent fulfilled her burden of establishing a good faith reason for the move and that the move will not be inimical to the child’s interests. The custodial parent can rely on evidence including, but not limited to, an extended family in the new location that can help raise the child; greater educational and health opportunities; and a visitation schedule enabling the noncustodial parent to maintain his parenting relationship. It is then up to the noncustodial parent to prove that the custodial parent is acting in bad faith or against the child’s interests.
Important here is that these factors and this standard do not apply if the noncustodial parent shares physical custody or exercises a majority of custodial responsibilities due to the custodial parent’s incapacity or by agreement between the parties. The Court concluded that a custodial parent’s wish to move interstate then becomes a motion for a change in custody, which is decided following a “changed circumstances” and “best interests” analysis.
By contrast to an interstate move, an intrastate move is within the discretion of the custodial parent. The New Jersey Appellate Division has held that a decision to move intrastate does not require court approval because it does not fall within the confines of N.J.S.A. 9:2-2. Rather, such a move may call for a modification of an existing custodial and parenting-time arrangement only if it creates a “substantial change of circumstances” injurious to the child’s best interests or her relationship with the noncustodial parent. A court will determine whether a modification is required by reviewing the evidence in light of the 12 Baures factors listed above.
While our judicial system recognizes that it is unrealistic to keep divorced parents and children from moving elsewhere to better their lives, there are ways to ease the blow of a custodial parent’s move away from the noncustodial parent either interstate or intrastate. One way is to develop a parenting plan that allows the noncustodial parent to enjoy time with the child substantially similar to that which he experienced with the child before the move. Developing such a plan will ease tensions and maintain relationships between the parents and the child, which only benefits the child in the long run.