When co-parents share joint custody of a child, the location where each parent resides is important. Ideally, co-parents live close enough to facilitate a hassle-free commute that will allow the child to foster close relationships with both, absent major disruptions to their daily lives.
Obviously, that’s harder if one parent moves out-of-state. If you’re thinking about moving your child out-of-state with you, you will need permission from the court. However, if you’re just moving across town, though, or to the other side of the state, you won’t necessarily need court permission. However, as our Middlesex County divorce attorneys can explain, such a move could be considered a significant change in circumstance, which might warrant an update to the custody and parenting time plan, if the other parent requests it.
In both of these scenarios, the court will consider the best interests of the child.
Unpacking Your Moving Plans
When it comes to a custodial parent’s interstate move, N.J.S.A. § 9:2-2 is very clear: A parent with residential custody who decides to move out of New Jersey must get permission either from the other parent or a court order. Even with the consent of the other parent, you will want to seek a court hearing to formalize the agreement.
Prior to 2017, parents with primary custody who wanted to move out-of-state needed to meet the Baures factors, establishing that the move was being made in good faith and wasn’t harmful to the children. Then in 2017, the appellate court’s ruling in Bisbing v. Bisbing made interstate moves by custodial parents much more difficult. Justices pointed out there was no statutory authority that gave custodial parents the presumptive right to leave New Jersey with their kids. Now, custodial parents who don’t have the permission of the non-custodial parent to relocate must show the move is in the best interest of the child. This requires analyzing a much longer checklist, as outlined in N.S.J.A. § 9:2-4.
That brings us to intrastate moves, those to somewhere else in New Jersey. Firstly, there is no formal statute that directs us on this. What we do have is a fair amount of case law that serves as guidance.
In 2003, the New Jersey Appellate Division ruled in the case of Schulze v. Morris that N.J.S.A. § 9:2-2 does NOT apply to a custodial parent’s bid to move somewhere else in the state. This may seem unfair, considering that for a move from Middlesex County to Cumberland County is a lot farther than just over the Pennsylvania border. However, if your co-parent is moving a significant distance, you can petition the court to modify the child custody arrangement based on a substantial change in circumstance.
More recently, the Appellate Division ruled in the October 2019 case of A.J. v. R.J. that a trial court weighing a requested child custody modification based on the mother’s intrastate move should have weighed the child’s best interests as noted under Bisbing, rather than the two-factor checklist under the outdated Baures ruling. In A.J., the mother, primary residential parent, had moved from her residence in Elizabeth to Mount Laurel after the landlord increased the rent and refused to give her more time to find another residence. In one conversation the mother had with the father, he told her that a move that far away from him would be unfair. When she moved anyway, he filed for custody.
The trial judge allowed the mother to maintain custody and keep the children where they were. However, the appellate court pointed out that although the judge applied the less stringent Baures factors, Baures had been overruled by Bisbing at that point. The custody order was reversed and the case remanded, with a directive for the lower court to weight the children’s best interests before ruling on the matter. A.J. was a precedent-setting case, but it could yet be appealed to the New Jersey Supreme Court.
The bottom line is that whether you’re moving or seeking to stop your co-parent from relocating across the state – or the country – it’s wise to at least consult with an attorney to review your legal responsibilities and options.
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