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What happens when the parent of the primary residence wants to relocate with the child?

When deciding custody, the primary and overarching consideration in custody disputes is the best interest of the children.  Kinsella v. Kinsella, 150 N.J. 276, 317 (1997). This criterion involves evaluation of the safety, happiness, and physical, mental and moral welfare of the child. Fantony v. Fantony, 21 N.J. 525, 536 (1956).  In the event the parties are unable to resolve custody and parenting time issues, the Court will decide upon an evaluation of the best interest factors pursuant to N.J.S.A 9:2-4.

Given life’s unpredictability, we do see at times cases wherein the Parent of Primary Residence (herein “PPR”) wishes to relocate with his/her child.  What happens then one may ask? Is the PPR automatically allowed to remove the child from New Jersey? The short answer is no.

New Jersey requires approval

Parents seeking to relocate with their child outside of New Jersey require either permission from the other parent or, a Court order (i.e. permission from the Court). Some parents will agree to permit a relocation because they believe it is ultimately in the child’s best interests. Some parents may also agree especially when the child is relocating closer to him or her. Others, however, disagree perhaps because they do not believe the move is in the child’s best interests and/or the child will be moving further away and as such the move will negatively affect their relationship. Regrettably, some parents also withhold consent for no reason other than to control the PPR.

When there is a disagreement concerning relocation, the PPR must file an application with the Court requesting permission for their child to relocate with them. In 2017, the New Jersey Supreme Court in Bisbing v. Bisbing modified the legal standard to be applied to relocation applications which was previously established in Baures v. Lewis, 167 N.J. 91 (2001). The Baures standard afforded deference to the custodial parent, finding the custodial parent seeking to relocate satisfied the showing of cause required by N.J.S.A. 9:2-2 by demonstrating a good faith reason for the move and that it would not be inimical to the child’s best interests. Baures at 18-20. The social science underlying the Baures standard was the concept that what is good for the custodial parent is good for the child. Bisbing departed from this presumption, focusing the inquiry more directly on the child’s best interests.

Bisbing established that the court is charged with conducting an analysis of the child’s best interests pursuant to N.J.S.A. 9:2-4 to determine cause under N.J.S.A. 9:2-2. Subsequently,  in order to make such a determination, the Court will often schedule a plenary hearing which will allow both parties to submit evidence, retain experts, and provide testimony in support of their respective position.

It is important that regardless of which “side” you are on, you know your rights and are represented by counsel that is aware of the law as well as the tools available to defend your position.

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