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

May I Relocate from the State of New Jersey if the Other Parent Objects?

As a New Jersey divorce attorney, I have found that many folks relocate from home (many times far, far away from their home) and relocate to New Jersey to be with their spouse.  I have also learned that when many people seek a New Jersey divorce, they then want to move back to their “hometown.”  This occurs for a variety of reasons, such as having family back home who will be supportive during this difficult time.  Another common motive to relocate from the state of New Jersey is due to the high cost of living in our state.  However, as a New Jersey family lawyer, I must explain to my client that, if there is a child involved, the other parent must consent (in the form of a Consent Order signed by a judge of the Superior Court of New Jersey) or otherwise we must have a trial to determine if they will be permitted to permanently remove the child from the jurisdiction of N.J.  Let’s explore further.

In 2001, the New Jersey Supreme Court ruled in the landmark decision of Baures v. Lewis on the law of relocation with children after divorce. After looking to past case precedent and the future to come, the Court held that for a custodial parent to relocate with his or her child after a divorce, he or she would have to show that the move (1) was being done in good faith; and (2) would not be detrimental to the child’s best interests. Following the establishment of this bright line rule, the New Jersey Supreme Court provided a list of factors for courts to consider in future hearings to aid in determining whether the move was permissible.  While some of these factors are pretty basic, including good faith reasons for the relocation and valid arguments against it, all of the other factors directly involve the best interests of the child.  These include the child’s education, health, recreational activities and the like. 

For eleven years, New Jersey courts have strictly followed the standard set forth in Baures and have applied the twelve factors to determine the permissibility of relocating with children to a different state. However, a new case appears to have placed extra emphasis on the fourth factor: 

(4) Will the child have access to educational, health, and recreational activities at least equal to what the child enjoys in New Jersey.

 In 2012, the court decided the case of Benjamin v. Benjamin 430 N.J. Super. 301 (Ch. Div. 2012).  In the case, the parties had divorced and joint legal custody of their daughter and the mother was the parent of primary residence.  When the mother filed an application for removal to North Carolina with her daughter, the father opposed and filed suit. His main argument was that the mother did not have a job lined up in North Carolina.

While the Baures factors do not specifically provide for a factor that deals with this issue directly, the court looked to the fourth factor “will the child have access to educational, health, and recreational activities at least equal to what the child enjoys in New Jersey?” The father argued that in New Jersey the mother had a stable job that did give their daughter access to educational, health and recreational activities. However, in North Carolina would not provide the child with the same “opportunities” that are available in New Jersey.

Ultimately, the court held for the mother and granted her permission to relocate. However, my review of the case dictates that a shift in a parent’s ability to relocate may be in effect.  Stay tuned to the channel (yes I am dating myself) as this issue continues to evolve.