United States: A Nuts And Bolts Review Of NJ Relocation Law – Are We There Yet?

Last Updated: October 12 2016
Article by Robert A. Epstein

Originally published by the New Jersey Law Journal

In many divorce and post-divorce custody and parenting time disputes, one of the most potentially contentious areas of dispute involves a parent's request to relocate with the children. Characterized as often resulting in emotionally "heart-wrenching" decisions, relocation requests are analyzed under different legal standards depending on: (1) the existing custody arrangement; (2) whether the requested move is intrastate or interstate; (3) whether there exists a written agreement between the parties regarding relocation; and (4) whether the requesting party is acting in good faith. Understanding the law and its nuances can greatly aid litigants and practitioners in what may become a highly protracted litigation involving parents, children and experts to determine whether the relocation should occur.

Intrastate Relocation

Generally, a parent with primary physical custody of the child can decide to relocate within New Jersey without the noncustodial parent's authorization because, according to the Appellate Division's decision in Schulze v. Morris, 361 N.J. Super. 419, 426 (App. Div. 2003), moving intrastate is not actually viewed as a form of relocation. This conclusion also comports with the language contained in New Jersey's anti-removal statute. N.J.S.A. 9:2-2. In fact, the custodial parent is not required to file a motion for permission to relocate within New Jersey. To the contrary, the opposing parent must file a motion and successfully establish that the move presents a "substantial change in circumstance" harmful to his or her relationship with the child, or contrary to the child's best interests. See id. While the opposing parent will not likely be able to block the move, it may necessitate a review of the custody and time-sharing arrangement.

Interstate Relocation

N.J.S.A. 9:2-2 provides that a child of parents "divorced, separated or living separate," where the children are "natives" of New Jersey, or have resided for five years within its limits, shall not be removed from the state "against their own consent, if of suitable age to signify the same, nor while under that age without the consent of both parties, unless the court, upon cause shown, shall otherwise order." As a result, a parent seeking to relocate interstate with a child must procure either the other parent's consent or a court order allowing the move.

To determine what legal standard applies when faced with such an application, the first step "considers the type of parenting arrangement between the parties and whether the matter is actually an application for a change in custody as opposed to a removal case." Morgan v. Morgan,205 N.J. 50, 64 (2011).

If the primary custodial parent's motion is truly one for removal, whereby there does not exist a joint residential custody arrangement, then the factors applied are those enunciated by the Supreme Court of New Jersey in the seminal Baures v. Lewis, 167 N.J. 91 (2000). There, the court concluded that the custodial parent must prove the relocation request is based on a good faith reason and the move itself is not inimical to the child's best interests. The factors considered are as follows:

The reasons given for the move;

The reasons given for the opposition;

The past history of dealings between the parties insofar as it bears on the reason advanced by both parties for supporting and opposing the move;

Whether the child will receive educational, heath and leisure opportunities equal to what is available here;

Any special needs or talents of the child that require accommodation and whether such accommodation or its equivalent is available in the new location;

Whether a visitation and communication schedule can be developed that will allow the noncustodial parent to maintain a full and continuous relationship with the child;

The likelihood the custodial parent will continue to foster the child's relationship with the noncustodial parent if the move is allowed;

The effect of the move on extended family relationships here and in the new location,

If the child is of age, his or her preference;

Whether the child is entering his or her senior year in high school at the point which he or she should generally not be moved until graduation without his or her consent;

Whether the noncustodial parent has the ability to relocate, and

Any other factor bearing on the child's interest.

While the custodial parent's burden may seem daunting, it actually favors a primary caretaker's ability to relocate with the child, even outside of its own borders, for reasons based on psychological studies, common sense and public policy.

In a situation where the parents "truly share both physical and legal custody," however, the analysis no longer favors one parent over the other since the application is really one for a change in custody. As a result, the "best interests of the child" is the core concern. O'Connor v. O'Connor, 349 N.J. Super. 381 (App. Div. 2002).

Acknowledging the presumptive favoritism afforded the custodial parent under the Baures analysis, and in an effort to procure the more balanced "best interests" standard, a noncustodial parent may argue that a de facto joint residential custody arrangement exists. Notably, New Jersey courts have expressed that true joint residential custody arrangements are rare.

Anti-Relocation Agreement

Rather than incur the substantial cost of proceeding through a best interests evaluation and having a trial judge render an initial custody determination, parents often amicably resolve the issue and, in so doing, include language in their divorce or custody agreements addressing the issue of a potential future relocation. To that end, the Appellate Division's recent decision in Bisbing v. Bisbing,  445 N.J. Super. 207 (App. Div. 2016), emphasizes the potential impact and enforceability of anti-removal language. The decision addressed both the conduct of the party requesting relocation in agreeing to the anti-removal language, and the resulting legal standard that will apply, specifically holding that the party requesting removal can only receive the "benefit" of the Baures standard if he or she was found to have negotiated the agreement's anti-removal language in good faith, and proved a substantial unanticipated change in circumstances "warranting avoidance" of such language. Otherwise, the "best interests" standard will apply.

Similarly, in Shea v. Shea, 384 N.J. Super. 266 (Ch. Div. 2005), the noncustodial parent accused the custodial parent of manipulating the Baures standard by settling the divorce and, immediately thereafter, filing for removal to procure the more favorable burden of proof. The court found a plenary hearing was necessary to determine if such manipulation occurred and, if so, determined that the "best interests" standard should apply, rather than that set forth in Baures.

Pending Legislation

In late 2015, the Senate introduced new legislation titled the New Jersey Relocation of Children Act, which codifies the legal standard to apply when seeking removal under N.J.S.A. 9:2-2 and touches upon many areas previously addressed in relocation-related jurisprudence. Perhaps the most important component of the pending bill is its modification of the Baures factors "by placing greater emphasis on the needs of the child." Senate No. 1137 (Primary Sponsor Senator Christopher Batemen and Co-Sponsor Senator Loretta Weinberg), Assembly No. 339 (Primary Sponsor Troy Singleton). In so doing, the bill mandates use of the "best interests" standard in all removal matters and notes that "No presumption shall be made in favor of or against relocation of the child." At this juncture, each form of the bill has been referred to the respective judiciary committees.

With advances in societal mobility, ongoing research regarding the impact of relocation on children, and more, it is clear that recently decided case law and pending legislation are not the end of the relocation story. As with most areas of family law practice, trial judges will be called upon to analyze very fact-specific scenarios to determine the right result within the confines of the law as it develops over time."

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Robert A. Epstein
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions