This is commonly referred to as “removal.” There are two types of “relocation” or “removal.” The first is interstate removal where one parent wants to relocate to another state within the United States. The second is international removal where one parent wants to relocate with the child to another country. Gourvitz & Gourvitz, LLC has tried many child relocation matters and have also been able to settle a majority of these matters through various non-judicial means.
It is important to keep in mind that absent an agreement of the parties or an Order of the Court, a custodial parent cannot relocate with the child out of state or out of the country. In fact, the “removal” statute, N.J.S.A. 9:2-2, prohibits the removal of children of divorced or separated parents from the State without Court authorization unless both parents consent, or the children themselves consent if they are deemed old enough.
It used to be the law that a Court in making its decision must first determine whether the custodial parent has a good-faith reason to move with the children. Any sincere, good-faith reason sufficed such as moving to live near relatives, seeking new or higher paying employment, or the custodial parent’s remarriage satisfied the good-faith requirement. After Courts found that the custodial parent wanted to move for a good-faith reason, it then considered whether the move will be in the best interest of the children or whether the relocation will adversely affect the visitation rights of the non-custodial parent.
The burden then shifted to the objecting parent, or non-custodial parent, to prove that the effect of removal will be inimical to the child’s best interest. Absent an adverse effect on the children’s best interest or the non-custodial parent’s visitation rights, Courts used to hold that the custodial parent should enjoy the same freedom of movement as the non-custodial parent.
In 2017, the New Jersey Supreme Court issued an opinion in Bisbing v. Bisbing.
The New Jersey Supreme Court changed the entire landscape of interstate removal cases. It departed from the two-part test previously prescribed for a relocation application brought by a parent of primary residence and stated that Courts should apply the same standard to all interstate relocation disputes under N.J.S.A. 9:2-2 in which the parents share legal custody — cases in which one parent is designated as the parent of primary residence and the other is designated as the parent of alternate residence and cases in which custody is equally shared. In all such disputes, the Supreme Court of New Jersey held that the Courts should decide whether there is “cause” under N.J.S.A. 9:2-2 to authorize a child’s relocation out of state by weighing the factors set forth in N.J.S.A. 9:2-4, and other relevant considerations, and determining whether the relocation is in the child’s best interests.
