This week the New Jersey Supreme Court issued a significant ruling that changes how that state handles relocation cases. For several decades, New Jersey had utilized a “cause harm” standard for relocation, meaning that the parent opposing relocation would have to show that the move would cause actual physical, emotional or psychological harm to the child – a very high standard that courts utilize more in cases of abuse or neglect rather than relocation.
In the recent case, a mother planned to move from New Jersey to Utah to live with her new husband. Her divorce decree stated she needed the written consent of father, who refused to give permission because he wanted the children to stay in New Jersey. The trial court, using the old “harm” standard, allowed the relocation because it found no evidence of imminent harm to the children. The New Jersey high court reversed, arguing that in relocation cases courts should apply a best interest of the child standard. Under this view of the case, moving the children across the country when they had regular contact with their father from birth would not be in their best interests.
In Missouri, for a parent to relocate the minor children, that parent must give notice in writing by certified mail at least sixty days in advance of the proposed move, and provide the address of the new location, the new phone number, the reason for the relocation and a revised parenting plan. If a parent fails to give proper notice, the parent cannot relocate. However, if a parent does give proper notice, the non-relocating parent has thirty days to file a motion and affidavit objecting to relocation. Our courts have strictly interpreted this thirty day deadline. If the deadline passes without the filing of the objection, the relocating parent has an absolute right to relocate. If the non-relocating parent timely files the objection, the relocation is on hold until resolved after an evidentiary hearing before the trial court. When examining the challenged relocation, the trial court considers only two factors: whether the relocation is made in good faith, and whether the relocation is in the best interests of the child.
Some look at the Missouri standard, now adopted by New Jersey, and wonder if it makes it too hard for a parent to relocate. Our courts have responded to that point by noting that the preference in Missouri is for both parents to have frequent and meaningful continuous contact with the children, but that other circumstances may dictate that the amount of contact be rearranged for a relocation if best for the children. So, moving from joint and equal physical custody to something more like sole custody and visitation will require a high bar for the relocating parent. Our courts have found that a new relationship alone usually does not satisfy that standard, but that moving for better employment that enhances the standard of living for the children could satisfy the standard. Also, many relocation cases get resolved between the parents before the relocation, with the parents negotiating new custody and support terms.
If you have questions about relocation, contact us – we can help.