The Pendulum Swings Again in Cases of Child Relocation

New Jersey laws on relocation of a child (also called “removal” in interstate applications) may be on the precipice of significant change, which may lead to a flurry of new legal challenges for parents with primary residential custody of a child seeking to relocate.

New Jersey has a long history of evolving attitudes regarding the rights of separated/divorced parents in relocation cases. Of importance to this article, in 2001, Baures v. Lewis, 167 N.J. 91 (2001), became and remains to this day the seminal case relating to relocation of the primary residential custodial parent from New Jersey. In Baures, the primary residential parent sought to relocate from New Jersey to Wisconsin with the parties’ son. The New Jersey Supreme Court created what many currently deem to be a low threshold of evidence necessary to achieve a presumption in favor of relocation, by simply requiring the party seeking relocation to provide a “good faith” basis for the relocation and that the move would not be harmful to the child’s interest. The court even noted that “[t]he initial burden of the moving party is not a particularly onerous one.” Id. at 118. The court delineated 12 factors for courts to utilize in determining whether removal would be harmful to the child’s interest.

The Baures case increased the depth of analysis and the number of factors for courts to consider in resolving relocation issues, while at the same time providing a primary residential custodial parent seeking out-of-state relocation a distinct advantage in the analysis.

The other most notable case addressing relocation is O’Connor v. O’Connor, 349 N.J. Super. 381 (App. Div. 2002). The appellate court affirmed the trial court’s finding that the Baures factors should be used only if one parent is the primary caretaker and the other parent is the secondary caretaker. However, if both parents share legal and physical custody, an application by one parent to remove the child must be analyzed as a change of custody application, which is an extremely difficult application in which to prevail.

Now, over a decade after the Baures and O’Connor decisions, and based in part on what appears to be a discredited psychological study that formed some of the underpinning of the basis of the Baures analysis, there are two proposed pieces of legislation before the New Jersey legislature that, if enacted, would fundamentally alter the way that courts determine relocation issues. These proposals would negate the presumptions and advantages provided under the current law to a primary residential parent seeking to remove the child from the state.

S1493 was introduced to the Senate on Feb. 16, and has been referred to the Senate Judiciary Committee. This proposed legislation establishes a presumption that joint physical custody is in the best interests of the child and sets forth nine factors for courts to consider in determining whether the relocation will promote the best interests of the child:

(1) Whether the child will maintain substantial contact, joys and the rearing of the other parent even if the relocation is approved;

(2) Whether the relocation would improve the general quality of life for the child, giving due consideration to the disruption, if any, caused by the day-to-day relationship between the parent not relocating and the child;

(3) Each parent’s motive in seeking or opposing the relocation;

(4) Whether the costs of transportation or revised parenting time is financially affordable by the parents;

(5) Whether the relocation of either parent will cause an undue burden on the other parent;

(6) Access to extended family support if needed;

(7) Whether there has been any history of sexual or physical abuse;

(8) The impact of the relocation on each parent; and

(9) The impact on the child including whether the relocation is harmful to the health or well-being of the child.

Another piece of proposed legislation, A339 (and its companion bill, S1137), was introduced and referred to the Assembly Judiciary Committee on Jan. 27. It seeks to modify the Baures factors by increasing the burden on the party seeking relocation to show that removal is in the best interest of the child, rather than simply showing that the child will not be harmed by the relocation. This legislation places a greater emphasis on the needs of the child. The factors proposed by this bill include:

(1) The right of the child to maintain personal relations and direct contact with both parents on a regular basis in a manner consistent with the child’s development, except if the contact is contrary to the child’s best interests;

(2) The views of the child regarding relocation if the child is of appropriate age and maturity;

(3) The parties’ proposals for the practical arrangements for relocation, including accommodation, schooling and employment;

(4) The reasons for seeking or opposing relocation;

(5) Any history of domestic violence or abuse, whether physical or psychological;

(6) The history of the family and particularly the continuity and quality of past and current care and contact arrangements, including any prior relocation;

(7) Pre-existing custody and parenting time determinations;

(8) The impact of granting or refusing relocation of the child, paying particular attention to the child’s extended family, education and social life;

(9) The nature of the inter-parental relationships and the commitment of the applicant to support and facilitate the relationship between the child and the noncustodial parent after relocation;

(10) Whether the parties’ proposals for parenting time after relocation are realistic, with particular attention given to the cost to the family and the burden to the child;

(11) The enforceability of parenting time provisions ordered as a condition of relocation in the state of destination;

(12) The issues of mobility for family members, both seeking and opposing relocation;

(13) The economic impact of relocation on both parents;

(14) Any special medical, mental or educational needs of the child and the likelihood that those needs can be met at the same or better level in the state of destination than in the state of New Jersey; and

(15) Any other factor as the court may deem relevant under the circumstances.

Both proposed legislations appear, in varying degrees, to dismantle the lower standard for relocation established by Baures. However, by requiring a custodial parent to affirmatively demonstrate these extremely heightened standards afforded to an application for relocation, the new standards may have the effect of tipping the scale excessively and possibly unfairly in the favor of the non-custodial parent who does not share in the bulk of responsibility to provide daily care for a child.

The advantage given to a primary custodial parent seeking relocation in Baures considered that a previous determination had already been made that the child’s best interest was better served by being in the care of the primary custodial parent. Baures also considered the personal well-being of the primary residential parent. The heightened burden placed on a primary custodial parent seeking to relocate under the proposed legislation may serve to undermine the previous custodial determination and largely ignore the well-being of the primary custodian; factors that were important to the Supreme Court in the Baures ruling.

The proposed legislation gives the family court judge some discretion and the ability to consider and apply the new enumerated factors on case-by-case basis. However, the inclusion of the vague “best interest of the child” standard as the key component (in one and arguably both forms of proposed legislation) in carving a decision on relocation, and the elevated burdens of proof (especially if the burden of proof is elevated to a clear and convincing evidence standard) may create a relocation burden for the primary custodial parent that is potentially unachievable. It can be argued that except in the rarest and most extreme of circumstances, it may never be in the child’s best interests to deny local and constant physical access to both parents.

Arguably, it seems likely that under either proposed version of the relocation statute, the primary custodial parent may become a captive of current geographical living arrangements, while the non-primary custodial parent retains unfettered freedom of relocation. This potentially gender-unequal result would move the relocation pendulum back to a time prior to the Baures decision, when the perceived inequities of the relocation law against the primary residential custodian provoked the Supreme Court’s recognition of those inequities and prompted its decision in Baures v. Lewis.

The issue of relocation bears close monitoring as it winds its way through the New Jersey legislature and the courts. There are long-term social science implications to be carefully considered, including the balancing of shared custodial rights, the rights of the child and a parent’s individual rights.

Reprinted with permission from the October 31, 2016 issue of The New Jersey Law Journal. © 2016 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.