Two pieces of legislation pending in New Jersey have the potential to change the results of requests to relocate children under custody agreements. Currently, under the law established in Baures v. Lewis, 167 N.J. 91 (2001), the main case concerning relocation of residential custodial parents, custodial parents wanting to relocate have only to show that the move is being done in good faith and that relocation is not harmful to the child’s interests.
Both pieces of legislation, in contrast, rest on presumptions that being geographically close to both parents is in the best interests of the child. As a result, the proposed legislation would shift the issue concerning relocation from not being harmful to the child’s interests to the whether the move is in the best interests of the child.
A Balancing of Rights
The legislation, if passed, might prompt a series of legal challenges from residential custodial parents seeking to relocate for job, family, or multiple other potential reasons.
Essentially, the different presumptions behind the existing law and the proposed legislation rebalance the respective rights in the parent-child triad. As a recent article in the New Jersey Law Journal noted, it may tip the scale unfairly toward the noncustodial parent and serve to make the custodial parent relatively immobile, perhaps unable to move for any reason as long as the noncustodial parent remains in New Jersey.
The Baures decision considered the well-being of the primary residential custodial parent. It also assumed that a determination of the best interests of the child in custody arrangements had already been made in the initial determination of which parent had custody. Both pieces of legislation focus more on the best interests of the child and on the bond between both parents and children. The resultant focus may somewhat undercut the well-being of the parent with primary custody and make the initial determination of custody less important.
Family court judges will have discretion to some degree. The New Jersey Law Journal, however, observes that the vagueness of the term “best interests of the child” and the higher burden of proof may result in “potentially unachievable” standards for primary residential custodial parents who want to move to another location.
New Factors to Consider
The first piece of proposed legislation, S1493, was introduced to the New Jersey State Senate on February 16. It is now in the Senate Judiciary Committee. S1493’s presumption is that joint physical custody is in the best interests of the child. The bill enumerates nine factors for consideration in arriving at a conclusion on whether the best interests are being served.
The second proposed piece of legislation, A339 and a companion bill, S1137, was introduced on January 27. It was referred to the Assembly Judiciary Committee on that date. It requires the parent wanting to move to show that removal of the child from New Jersey is in the child’s best interests, rather than just showing that the relocation will not be harmful to the child.
Ironically, New Jersey law on parental relocation before Baures was thought to be unfair to the primary residential custodial parent; Baures was rectifying an inequity. The proposed legislation may prove inequitable yet again.
- American Academy of Matrimonial Lawyers. “Parental Relocation Considered.” American Academy of Matrimonial Lawyers, New Jersey Chapter. http://nj.aaml.org/parental-relocation-reconsidered
- Kornitzer, Robert B., Valery Jules McCarthy and Zachary Levy. “The Pendulum Swings Again in Cases of Child Relocation.” New Jersey Law Journal, October 31, 2016. http://www.njlawjournal.com/id=1202771746237/The-Pendulum-Swings-Again-in-Cases-of-Child-Relocation?slreturn=20161022131245