How Does a Court Determine Whether to Grant a Relocation Request?

Let’s face it—we live in a highly mobile society, where people seldom stay in one place for long. One study found that the average American moves about 12 times in his or her lifetime. It’s one thing to pick up and move your whole family—you may still face additional challenges from minor children. But what if you’re divorced and have custody of minor children? Can you relocate? Are there any conditions on your right to move?

In the state of New Jersey, if you are a custodial parent of minor children from a divorce, you must obtain the permission of the court for certain moves. There’s a specific statute (a written law) that governs relocations outside the state of New Jersey—the custodial parent must always obtain court approval. While there is no specific statute addressing moves within the state of New Jersey, there’s plenty of “judge-made” law—court decisions—to help determine rights and responsibilities.

While ruling that the statute governing out-of-state relocations does not apply to in-state moves,the court in Schulze v. Morris also held that an in-state move could be construed as a “substantive change in circumstances.” If so, it requires modification of the existing custody and visitation order. If the existing custody and visitation order needs to be revised, the court must then apply the same factors used to determine whether an out-of-state relocation is permissible.

The Factors Considered When Evaluating a Relocation Request

The guiding principle when assessing whether relocation is permissible is the “best interests of the child.” With that as a given, the court will inquire about:

• The reason for the move—is it for a new job, a better school system or some other reason that can be construed as benefitting the child
• The reason for the non-custodial parent’s objection to the move
• The prior relationship between the parents—is there evidence of an ulterior motive?
• Will the non-custodial parent still be able to maintain a meaningful and regular relationship with the child?
• Whether the child has special needs or talents, and the extent to which those needs and talents will be met through a relocation
• The available educational, health and entertainment opportunities for the child in the proposed relocation site
• The impact on extended family member relationships with the child (such as grandparents)
• The child’s preference, if the child is deemed to be of sufficient age

As a general rule, the court will not allow a move in a child’s final year of high school, unless the child consents.

Contact Attorney David M. Lipshutz

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