In what seemed like an eventual, but no less dramatic change in family law jurisprudence, the Supreme Court of New Jersey in Bisbing v. Bisbing overturned the well-established two-part test used in determining whether a primary custodian should be permitted to relocate interstate with an unemancipated child and, in connection therewith, the primary custodian’s presumptive

In many custody disputes, a primary area of concern is one parent’s ability to relocate with the children after the divorce is over.  Relocation requests have been characterized as often resulting in “heart-wrenching” decisions.  As we have previously discussed on this blog, the legal standard to be applied to a parent’s interstate removal application differs

The issue of relocation comes up all the time between divorced parents.  One day mom calls dad and tells him that she plans on moving with the kids from Hoboken to Cherry Hill.  Perhaps she plans on moving into Manhattan from Morristown.  Whatever the intention, there is going to be an impact on the child

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.


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We have all grappled with the fact that former spouses move, and oftentimes, a residential parent wants to take the children with her or him. While we have previously discussed the issue of removal in other posts, a recent decision discusses the issue of which court a parent must look to in the case of a

 It is well-settled law in New Jersey that prior to the relocation of a child from the this state by a custodial parent on a permanent basis, the parent first must formally request leave from the Court. The court will then examine the move under the factors set forth in the seminal case Baures v. Lewis, which guides the court’s relocation inquiry. In Baures, the Court recognized three now-established legal principals:

1. The relocation standard is based upon a custodial parent’s right to seek happiness and fulfillment, which in turn, benefits the child.
2. Upon relocation, the non-custodial parent’s communication and exposure to the child must be sufficient to sustain that relationship.
3. Finally, the custodial parent must provide proof that the child would not suffer as a result of the move.

While Baures is proverbial gospel when it comes to relocation from the State of New Jersey, an interesting question arose in the Ocean County trial Court in McKinley v. Naters, which was approved for publication (binding opinion) on April 13, 2011. Namely, the McKinley case examined whether the court should grant a contested application for a temporary removal of a child to another state for “extended vacation purposes” prior to a formal relocation hearing under Baures?

The parties in McKinley were divorced on December 10, 2002. They share one child together, whom the Court referred to as H.M. At the time of the divorce, the parties agreed to share residential (physical) custody of H.M.


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A New Jersey trial court recently held in the published (precedential) decision of McKinley v. Naters that it was appropriate under a given set of circumstances to allow for the pre-trial, temporary removal of a child to another state for what it described as “extended vacation purposes” to provide the child with a “reasonable opportunity . . . to experience living in the proposed new state prior to trial.”  When I read the court’s conclusion, which is briefly laid out on the first page of the Opinion, my first thought was the seeming tactical advantage that would inure to the parent seeking removal.   After a full review of the court’s conclusions and rationale, however, it seems that the interests of both parties were properly balanced so as not to provide leverage to one party over the other.    

The facts are relatively straightforward for a removal scenario.  The parties divorced in 2002 and the settlement agreement provided for shared residential custody of the child.  In May 2010, Mom filed a motion seeking to permanently relocate to Florida with the child.  She claimed that she and her present spouse sought to relocate there for employment reasons, the child would have greater educational opportunities in Florida, and he would “enjoy life” more in Florida than in New Jersey.  Dad opposed Mom’s motion and sought residential custody of the child.

A plenary hearing was scheduled to occur in August 2010 and, in the interim, the parties could attempt to mediate and conduct discovery.  A psychological expert was appointed by the court to perform a custody evaluation.  In June, Mom filed a motion seeking the court’s permission to “temporarily remove” the child from New Jersey to Florida for 4 weeks for “extended vacation” purposes, and so the child could obtain a “feel” for the new neighborhood in Florida.  Dad opposed the request.  Not surprisingly, each party claimed that the other’s position was nothing more than an effort to obtain an advantage in the litigation.


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