New Relocation Standard in New Jersey DCP&P Cases

Bergen County DCP&P Defense Lawyers

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Can I relocate with my minor child? NJ lawyers help Bergen County

Bergen County NJ DYFS Help

The New Jersey Supreme Court reversed an over decade long precedent and changed the legal landscape for determining whether a parent can move out-of-state with their minor child.  To start, Title 9 governs the question over whether a parent can relocate a child.  Under the controlling statute, a showing of “cause” must be established before a court will authorize the permanent removal of a child to another state without the consent of both parents or, if the child is of “suitable age” to decide, the consent of the child. When determining whether “cause” is in fact established, our Family Courts were previously guided by the 2001 New Jersey Supreme Court’s decision in Baures v. Lewis, 167 N.J. 91.  In that case, the High Court took note of the following.

If you or a loved one needs assistance with a child abuse or neglect allegation in New Jersey, the Tormey Law Firm can help. Our attorneys have handled thousands of cases involving DCP&P (formerly known as DYFS) and can walk you through this stressful process and advise you every step of the way. We have offices in Hackensack, Morristown, and Newark, and are available now to assist you with a free initial consultation at (908)-356-6900.

Can I relocate with my minor child?

Historically, courts throughout the country have disfavored removal of a child from the jurisdiction after divorce due to the fear that removal would likely destroy or erode the relationship between the noncustodial parent and the child.  However, as time moved forward, many courts’ opinions on the subject changed for several reasons.  For one, mobility throughout the county became easier, thus, visiting children out-of-state was not as difficult.  Two, the ability to communicate also became much easier due to advancements in technology, therefore, it was much simplier for parents to speak with their child on a daily basis.  And third and most importantly, social science research uniformly confirmed the simple principle that  what is good for the custodial parent is good for the child.

Nevertheless, the Baures Court also acknowledged that research affirmed the importance of a loving and supportive relationship between the noncustodial parent and the child.   The Court understood it is important for a child to see and interact with both parents.  But, the relied upon studies did not confirm any connection between the duration and frequency of visits and the quality of the relationship of the child and the noncustodial parent.  Although confidence that he or she is loved and supported by both parents is crucial to the child’s well-being after a divorce, no particular visitation configuration is necessary to foster that belief.  According to scholars, so long as the child has regular communication and contact with the noncustodial parent that is extensive enough to sustain their relationship, the child’s interests are served.

With that in mind, the Baures Court was compelled to develop a legal framework that balanced the competing interests of the custodial parent’s interest in freedom of movement, the State’s interest in protecting the best interests of the child, and the interests of the noncustodial parent to maintain a relationship with his or her child.  The Court even articulated, when resolving a relocation dispute, “[t]here is rarely an easy answer or even an entirely satisfactory one.”Nevertheless, there must be an answer and to that end, the High Court developed a two part test to decide whether “cause,” within the meaning of the statute, has been show.  The party seeking to move, who has had an opportunity to contemplate the issues, should initially produce evidence to establish that there is: one, a good faith reason for the move and two, that the move will not be inimical to the child’s interests. Included within their showing should be a visitation proposal.

The Baures Court further directed, in assessing whether to allow removal, the court should look to the following factors relevant to the plaintiff’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 advanced by 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 230*230 schedule can be developed that will allow the noncustodial 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 noncustodial 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 noncustodial parent has the ability to relocate; (12) any other factor bearing on the child’s interest.

For the last 16 years, the provisions outlined above, were the standard.  Then, in 2017, the Supreme Court made a change when it decided Bisbing v. Bisbing, 230 N.J. 309.  The Hight Court replaced the two part test with a best interest of the child analysis.  The reason for the new framework was due to the following.

The Court in Bisbing recognized that many new studies surrounding the impact of relocation on children following divorce have not reached a consensus. Instead, the vigorous scholarly debate reveals that relocation may affect children in many different ways. The Court’s conclusion in Baures, that “what is good for the custodial parent is good for the child” is no doubt correct with regard to some families following a divorce.  However, as the social science literature reflects, that statement is not universally true.  A relocation far away from a parent may have a significant adverse effect on a child.

The Bisbing Court also took note that the progression of the law towards the recognition of custodial parents’ presumptive right to relocate, anticipated by the Baures Court, has not materialized.  Rather, the majority of states, either by statute or by case law, impose a best interests test when considering a relocation case.

Lastly, the threshold determination mandated by Baures may engender unnecessary disputes between parents over who is named the primary parent.  The Bisbing Court feared that many parents, who expect to move, may act in bad faith by demanding to deemed the custodial parent, not because it serves the child’s best interests, but because it will give them an advantage in a relocation proceeding.  Our custody statute clearly envisions that a custody arrangement will serve a paramount purpose: the promotion of the child’s best interests. The parties and the court should select the parent of primary residence based on that parent’s capacity to meet the needs of the child.  If a designation as the parent of primary residence will determine the result of a relocation dispute, parties may be motivated to contest that designation even if one parent is clearly in a better position to serve that primary role.

Accordingly, the current standard to determine relocation matter is what is best for the child.  To answer that question, family judges will be examining the factors set forth under N.J.S.A. 9:2-4(c), which are as follows: 
1. the parents’ ability to agree,
2. communicate and cooperate in matters relating to the child;
3. the parents’ willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse;
4. the interaction and relationship of the child with its parents and siblings;
5. the history of domestic violence, if any;
6. the safety of the child and the safety of either parent from physical abuse by the other parent;
7. the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision;
8. the needs of the child;
9. the stability of the home environment offered;
10. the quality and continuity of the child’s education;
11. the fitness of the parents;
12. the geographical proximity of the parents’ homes;
13. the extent and quality of the time spent with the child prior to or subsequent to the separation;
14. the parents’ employment responsibilities; and
15.  the age and number of the children.

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