Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

Child Custody and Relocation of the Children Out Of The State of New Jersey: An Example

Throughout my years as a child custody and divorce lawyer, I have handled many cases involving folks who want to permanently remove the children from the state of New Jersey to another.  While the leading case on this issue Baures v. Lewis provides for numerous factors to be analyzed, my two lead questions when discussing the matter are as follows:  1. Do you have extended family in the state wherein you would like to relocate, and:  2. Do you have employment opportunities in that state as well?   If the answer to this query is “yes,” I then ask a number of questions in order to determine whether this move is in the best interests of the children.  Similarly, if you are looking to oppose the move, you will have to prove why the move will be harmful to the children. Without such proof, the move will most likely be permitted. Let’s dissect a recent New Jersey Appellate Court decision, Valedofsky v. Valedofsky in order to further understand the foregoing.

In Valedofsky, the parties married in 2000 and divorced in 2010. Two children were born of the marriage. The father had primary custody of the children. In February of 2013, the father filed a motion to relocate with his children. He wanted to move from New Jersey to Rhode Island because he had received a job promotion there. The father argued that since the promotion came with a raise and more opportunities to advance, he could better provide for his children in Rhode Island. Additionally, all of his family lived in Rhode Island so there would be more family to care for and see the children on a routine basis. Yet, the mother opposed the motion to relocate, stating that her children were going to be too far away from her.

Nevertheless the trial judge granted the father’s motion. He analyzed the situation under the twelve-factor Baures test and found that the motion was made in good faith. Furthermore, the trial judge stated that the mother opposed the motion simply because she was bitter about the custody determination made against her, which was not a sufficient basis to reject a motion. The mother appealed.

On appeal, the mother argued that the father’s job promotion alone did not satisfy the good faith requirement since he would only be earning $11,000 more per year. Instead, she alleged that the move would cause irreparable harm to the children because they would be too far away. However, the Appellate Division affirmed the findings of the lower court. It stated that as long as the father’s motion to relocate was made in good faith and that the children would not suffer from the move, the motion would be granted.

The Appellate Division specifically discussed the relevance of the twelve-factor Baures test and its application to the case at hand. In Baures, the court laid out twelve factors to be considered when determining whether or not to grant a motion to relocate. The factors included: 

1.     Reasons given for the move;

2.     Reasons given by the non-custodial parent for opposing the move;

3.     The history between the parties as it relates to the positions of the parties in supporting or opposing the move;

4.     Whether the child will have access to educational, health, and recreational activities at least equal to what the child enjoys in New Jersey;

5.     Whether there are equal or better accommodations for children who have special needs or talents available in the new state;

6.     The ability of the parties to develop a parenting time schedule that will allow the non-custodial parent to maintain a full and continuous relationship with the child;

7.     The likelihood that the custodial parent will foster the children’s relationships with the non-custodial parent once the move occurs;

8.     The effect of the move on the ability of the parties to have a continuous relationship with extended families;

9.     The children’s preference, depending on the age and maturity level;

10.  If a child is approaching his or her senior year in high school, a move should generally not be permitted until after graduation;

11.  The ability of the non-custodial parent to move;

12.  Any other factor bearing on the children’s best interest.

Applying the Baures factors to the case, the Appellate Division found that the father’s motion to relocate was made in good faith and would not cause harm to the children. The promotion in Rhode Island would be very advantageous to his career. Additionally, the children would be able to spend more time with their grandparents and other extended family members. Moreover, the father had created a new visitation schedule, comparable to the initial one, so that the mother would see the children during the holidays and in the summer as much as possible.

The New Jersey Appellate Division also held that the mother failed to prove why the move would be harmful to her children. Other than stating they would be too far away from her, she established nothing to show that the children’s best interests were not being sought after. Rather, she was still upset that the father had obtained custody over the children and brought the motion as merely a rehash of the prior custody determination. 

As you can see, if you are looking to oppose a motion to relocate in New Jersey, it is imperative that you prove why it will not be in the children’s best interest to move. Thank you.