I have previously blogged on the standard courts consider when asked whether a custodial parent can relocate outside of New Jersey.

In our global economy with the economic times being what they are, more and more often I hear people asking if they’ll be allowed to move with their children after the divorce.  Recently, the Appellate Court in New Jersey issued an unpublished decision in what appears to have been a hotly contested divorce and relocation trial.  In Hryack v. Hyrack, A-1321-08T4, A-3645-08T2 (two consolidated appeals) decided October 29, 2009, the court gave its thorough analysis of the relocation issue as it pertained to this family.

The first question for a court to answer when faced with an application for relocation outside of New Jersey is whether the physical custodial relationship between the parents is one where one parent is the primary caretaker and the other the secondary caretaker. O’Connor v. O’Connor 349 NJ Super. 381, 385 (App. Div. 2002). If a court does find that the relationship between parties is one where one parent is the primary caretaker and the other the secondary caretaker, the request to relocate must be analyzed further with the standard set forth in the New Jersey Supreme Court case of Baures v. Lewis, 167 N.J. 91 (2001).

Under the Baures case, the parent that wants to relocate with the children must provide evidence that shows that there is 1) a good faith reason for the move and 2) that the move will not be inimical to the children’s best interest.  They should also propose a visitation schedule.

In other words, the parent seeking to move with the children must prove to the court that the request to move is being made in good faith and not, for example, to spite the other parent or thwart their parenting time with the children.  Also, the parent must show that moving with the children outside of NJ will not be contrary to the children’s best interest.

If the parent who wishes to relocate can meet these two burdens of proof, then it becomes the other parent’s responsibility to provide evidence opposing the move because its being done not in good faith or it is contrary to the children’s best interest.

To assist courts, Baures provides 12 factors to serve as guide posts when assessing the issue.  They are :

1. Reasons given for the move.

2. Reasons given for opposition.

3. Past history of dealings between the parties insofar as it bears on reasons advanced by both parties for supporting and opposing the move.

4. Whether 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.

6. Whether a visitation and communication schedule can be developed that will allow the non-custodial parent to maintain a full and continuous relationship with the child.

7. Likelihood that the custodial parent will continue to foster 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. The child’s preference.

10. Whether the child is entering his senior year in high school.

11. Whether the non-custodial parent has the ability to relocate.

12. Any other factor.

In the recently decided Appellate Division decision of Hyrack, the Court reversed and remanded to the trial court because there was not a thorough and detailed parenting plan addressing how the non-custodial parent would have sufficient time and access to the children so that his relationship with them was not impaired or injured based upon their move across country to California.

One of the lessons that Baures taught was the importance of both parties’ efforts to create an alternative visitation plan that could bridge the physical separation between the noncustodial parent and the children.  Ways such as email, Internet cameras, visitation during school breaks, holidays, vacations and phone contact must all be considered.  What also must be considered is the cost of such a visitation plan.  What the court should focus on is whether the communication and visitation is detailed and sufficient enough to maintain and nurture the connection between the noncustodial parent and children.  An important consideration to be made is what the quality of the relationship will be between the children and the noncustodial parent.

Any parent seeking relocation must examine these factors carefully and set forth a detailed plan for visitation and parenting time that can be executed and that can maintain a quality in the relationship between the children and the other parent.

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