Being a divorced parent and attempting to relocate to another state can be a difficult proposition.  N.J.S.A. 9:2-2 provides that children cannot be removed from the state without the consent of both parents unless the court otherwise orders. The statute’s intent is to preserve the rights of the noncustodial parent and to ensure that children are able to maintain their familial relationship.  Although the statute is stated simply enough, the process of relocating without the consent of the noncustodial parent can be extremely trying as evidenced in a recent published New Jersey Supreme Court decision, Morgan v. Morgan (n/k/a Leary).

In Morgan, the Court reviewed a decision denying a divorced mother’s request to move with her children to another state after the children’s father objected to the relocation.  These parties were married for 13 years and had two children when they divorced in 2005.   The final judgment of divorce incorporated the couple’s Property Settlement Agreement (PSA), which provided for joint legal custody of the children and which indicated that mom would be the party of primary residence. Under the PSA, dad would have the children alternate weekends, every Tuesday evening, every Thursday night until Friday morning, and for two weeks of vacation.

In late 2005, in anticipation of an application by mom to move with the children to Massachusetts, dad filed a motion seeking a re-determination of custody based on “a substantial change in circumstances.” He contended that he should be designated the parent of primary residence because he saw the children more than the PSA provided and was very involved in their school and recreational activities. Mom opposed this motion and filed a cross-motion seeking permission to move with their children to Massachusetts or, alternatively, a plenary hearing. In support of her request to relocate, mom pointed to the fact that Massachusetts is her home state; her entire family resides there; she was by then engaged to a Massachusetts resident; that her marriage would enable her to forego employment and become a “stay-at-home” mother; and that the PSA was not based on her promise to remain in New Jersey.  As a result of these filings, a plenary hearing was held with both sides presenting fact and expert witnesses.

Continue Reading Divorced? Have Children? Trying to Move to Another State?

We have blogged about the issue of relocation (removal) with children after a divorce and the standards that a court must follow.  To see our prior posts, click here, here and here.  The considerations are different if the parties have a truly shared parenting plan or if the non-custodial parent has something less than 50-50.  In the latter instance, the move must be made in good faith and not inimical to the child(rens) best interests (and there are numerous factors set forth in the Baures v. Lewis case that a court must consider. For true shared parenting cases, moves are more difficult because a more stringent best interests analysis is employed. On top of that, it is not enough that the parties designate their arrangement as joint or shared custody, the case law post-Baures made clear that it was the actual parenting time that mattered not what the parties described to to be.

Against that backdrop, we turn to the unreported (non-precedential) Appellate Division in the case of Walsh-Morales v. Morales decided on November 5, 2010.  In this case, post-divorce, the mother sought to re-marry and move to Texas with the parties’ daughter.  The father moved to bar the move, seeking sole custody if the mother moved.  The mother asserted that she was the primary residential parent- the father asserted that there was true shared parenting.

The trial court determined that there was true shared parenting, denied the mother’s request to relocate and directed that the father be the primary parent if the mother moved.  The mother appealed not necessarily as to the law applied, but rather, as to the factual determination that the parties had true shared parenting.

Continue Reading When True Shared Parenting Isn't 50-50 for Relocation Analysis

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).

Continue Reading Relocation with Children Outside of NJ

With technology, the Internet, mobility and information overflow, post divorce individuals often wonder if they can relocate to another state for personal or business related reasons.  The easy answer is sure, so long as there are no children or if your divorce judgment or agreement addresses this issue.

What happens when children are involved and the agreement or divorce judgment does not address the issue of relocation of a custodial parent.  The custodial parent seeking to relocate can file an application with the Court for an Order granting them permission to relocate.  The controlling statutory law is N.J.S.A. 9:2-2 and the precedential case in the state of NJ is Baures v. Lewis, 167 N.J. 91 (2001).

Recently, the Appellate Division revisited this issue in the unpublished matter of Cathrall n/k/a Greenberg v. Cathrall, IV, decided March 18, 2009, Docket Number A-4085-06T3.  This appeal stemmed from a post judgment order denying relocation, which resulted from a post judgment motion requesting permission to relocate from New Jersey to Florida, filed by the mother/custodial parent.

The parties were divorced in 2003.  Since their separation, plaintiff/mother had custody of the two minor children born of the marriage.  Defendant/father had supervised parenting time due to admitted issues with alcoholism and had a strained relationship with the minor children.  A year after the divorce was finalized plaintiff/mother remarried.  She was also the owner and operator of a children’s clothing store in Stone Harbor, which was operated as a seasonal business during the summer months.  Plaintiff/mother filed an application in early 2004 seeking permission to relocate to Marathon, Florida.  Her desire was to open a similar store in Florida to operate during the winter months and return to NJ during the summer months to operate the store in Stone Harbor.  Defendant/father opposed this application, however by way of an Order dated April 8, 2004, the trial court granted the request.

Continue Reading Now That I’m Divorced, Can I Move?

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.


Continue Reading Moves by a Custodial Parent Within the State and Outside of the State – What are the Considerations?