If I Would Like To Relocate From New Jersey To Another State With My Child, What Shall My Lawyer Argue To The Court?

As an attorney handling child custody disputes for the past 20 years, I understand that many parents envision their lawyer orally arguing to a judge of a New Jersey Family Court. While I take great pride in my verbal argument before a judge, as a seasoned family law attorney I understand that the Legal Briefs that are submitted to the Family Part of the Superior Court of New Jersey are essential towards obtaining a positive outcome for my client.

Following is a Legal Brief in a disputed child custody case, based upon hypothetical facts, that my law firm would submit if our client (in this case the mother) would like to relocate from the state of New Jersey to another state.

July 15, 2015

Honorable Jane Doe, J.S.C.

Superior Court of New Jersey

Middlesex County Court House

120 New Street, P.O. Box

New Brunswick, New Jersey 08903-2691

Re: Smith v. Smith

Docket No. FM-

Dear Judge Doe:

Please accept the enclosed letter brief in lieu of a more formal brief in support of the Cross-Motion of the defendant, Catherine Smith to permit her to relocate to Cooperstown, New York with the minor child.


The parties have been married for twelve years. They have one child,

James Jr., age seven. The child resides with the mother in the marital home

that is located at 45Avenue, East Brunswick, New Jersey. The father is

the owner and operator of John’s Tree Removal LLC. Currently, the

mother works full-time at Sandy’s restaurant in East Brunswick, New

Jersey to support herself and John Jr.

The father has a history of both child abuse and domestic violence. DCPP has substantiated that he abused the parties’ seven year old child. Visitation was suspended by Court Order dated May 15, 2015. Nevertheless, the mother agreed to supervised visitation. The father did not exercise this right and Probation has again suspended the visits. During the rare occasions when the father did see his son he used the time to include his girlfriend and “bad-mouth” the mother. He is currently on Probation for possession of methamphetamines and is in drug counseling. The Court’s Child Custody Neutral Evaluation recommends against unsupervised visitation.

On December 1, 2014 the Hon. Joseph Taylor entered an Order under the Final Restraining Order requiring the father to pay to the defendant $500.00 per week in temporary alimony and child support. (Exhibit C) The father has remained consistently delinquent in his payment of these obligations. As a result, the mother has become solely responsible for the maintenance of the marital residence, household transportation costs and the living expenses of herself and their son. She is unable to meet these expenses on her own.

Currently, the father has filed an application to reduce his temporary alimony payments to the mother. The father contends that he is unable to afford said payments. The mother is unable to maintain the marital residence or even a severely lessened standard of living for herself and their child under these circumstances.



N.J.S.A 9:2-2 prevents the removal of a child from the state of New Jersey without the consent of the parties, consent of the children, if they are of suitable age to consent, or by court order upon good cause shown. Id. See also M. v. K., 186 N.J. Super. 262 (Ch. Div. 1982). The purpose of this statute is to preserve the familial relationship rights of the non-custodial parent and the child. The New Jersey Supreme Court has grappled with the issue of accommodating the interests of both parents and children in a removal situation. Holder v. Polanski, 111 N.J. 344 (1988); Cooper v. Cooper, 99 N.J. 42 (1984).

The former standard applied where removal is challenged under N.J.S.A 9:2-2, demanded that the custodial parent initially show that there is a “real advantage” to her in the move and that the move “is not inimical to the best interests of the children.” Cooper, 99 N.J. at 56-58. Four years later, in Holder v. Polanski, ibid., the Supreme Court determined that the “real advantage” test infringed on the liberty rights of the custodial parent and did not address the fact that after a marriage ends, “the family unit is forever altered and that it is the reality of that changed family structure that must be accounted for in a removal case.” Holder, 111 N.J. at 349. The Court in its decision modified the requirement set forth in Cooper; more specifically, the Court revisited its decision in Cooper and held that “a custodial parent need not establish any ‘real advantage” from the move.

The new standard set forth by the Court determined that a custodial parent could relocate with the children of the marriage to another state as long as the move does not detriment the best interests of the children or severely impinge upon the visitation rights of the non-custodial parent.

Most recently, in Baures v. Lewis, 167 N.J. 91 (2001) the Court clarified in detail the procedural and substantive requirements for a court to give its approval for removal, recognizing that it has struggled to accommodate the interests of parents and children in a removal situation in the aforementioned cases. The Court established a hybrid scheme that recognizes the interests of the relationship between the custodial parent and the child and accords a particular respect for that parent’s right to seek happiness and fulfillment.

In its decision, the Court retained the standard under Cooper and Holder that the moving party ultimately bears a two-pronged burden of proving a good faith reason for the move and that the child will not suffer from it. In terms of this burden, the party seeking to move, who has had an opportunity to contemplate the issues, should initially produce evidence to establish prima facie that (1) there is a good faith reason for the move and (2) that the move will not be inimical to the child's interests. Baures, 167 N.J. 91 at 118.

With those principles in mind, in assessing whether to order removal, the court looks to the following factors relevant to the mother’s burden of proving good faith and that the move will not be inimical to the child's interest:

  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 advancedby 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 non-custodial 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 non-custodial 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 non-custodial parent has the ability to relocate;
  12. Any other factor bearing on the child's interest. Baures, 167 N.J. 91 at 116-117

The mother here clearly meets the burden set forth in Baures. The mother can no longer afford to maintain the marital residence, or afford to maintain the standard of living for James Jr. and herself in Middlesex, New Jersey. The father is, to date, approximately $20,000.00 in arrears. Since he is self employed most enforcement mechanisms are of little benefit to the defendant. The mother’s sister, with whom she and the son have a close relationship, lives in Cooperstown, New York and has offered to provide emotional and financial assistance to the defendant and her nephew if the mother is permitted to move there with the minor child The cost of living is less and the defendant will be able to secure employment in the resort area near the Baseball Hall of Fame. The mother has also researched the educational system in the area and has documented that it is more than adequate.

With regard to the relationship of the father and the minor child, the father has not exercised his visitation rights in months. Consequently, those rights have been suspended by the Court. However, the mother asserts that she will cooperate with any supervised visitation schedule imposed by the court in the future if the father’s visitation rights are reinstated. The mother’s promise is bolstered by the fact that she has in the past consented to the restoration of the father’s visitation rights even after same was suspended by the court. Clearly, the mother has the will and the ability to continue to foster a relationship between the father and child.

It is unlikely that the father can rebut the presumption established by the mother. He has not aided his family financially or emotionally. He has made minimal financial contributions toward their upkeep and welfare. More importantly, he has had his own visitation rights suspended by the court for failing to exercise them.

These factors clearly meet the “good faith” and proof of non-detriment to the interest of the child requirements of Baures. The mother’s request to relocate to Cooperstown, New York with the minor child should be granted.

Respectfully yours,

Edward R. Weinstein, Esq.


cc: Adversary


Please contact my office if you are involved in a child custody dispute involving removal of a child from New Jersey to learn more about how we may help you.

Thank you.