New Jersey State Bar Association
Bergen County Bar Association

Standard Applied When Relocating Children After New Jersey Divorce


In an unpublished New Jersey appellate decision, a father appealed from an order allowing a mother to relocate with their two kids to Texas. The divorced couple had two daughters, who were nine and 13 when the mother decided to relocate. The parties had joint legal custody of the kids, with the mother as the parent of primary residence under the final divorce judgment. The father was the parent of alternate residence. The consent order in the divorce judgment had also provided for the father’s parenting time, even if the mother relocated.

In 2014, the mother asked for the court’s permission to relocate with the kids to Texas. The court asked for a diagnostic evaluation. The doctor reported the mother had a good-faith reason for the move, since her new husband and his kids lived in the other state, and his business was there. The mother had proposed enough contact with the father so that they could keep up that relationship and the move didn’t harm the children’s best interests, since they’d get the same opportunities if they were in Texas. Other than leaving their father, the other factor weighing against the move was their large extended family on both sides in New Jersey, but they had already been incorporated into the new husband’s extended family. The doctor recommended the mother be allowed to move.

The father retained a different attorney and another doctor, who didn’t consider the same criteria as the court-appointed doctor under Baures. He used a best interests analysis and gave the opinion it was in the kids’ best interests to stay in New Jersey. The first doctor agreed that under the best interests standard, it was in the kids’ best interests to stay, but there weren’t enough contraindications to stop the plaintiff from relocating under the Baures criteria. The reports were both admitted into evidence, but neither was specifically mentioned by the court when it allowed the relocation.

Both the mother and the father testified. The father was worried that the mother would poison the kids against him. However, since the mother was the primary caretaker, the court decided that the Baures criteria related to relocation in shared parenting situations should be used. The court noted there were good reasons on both sides. There was a history of domestic violence and conflict between the parties, but in spite of that, the kids were thriving. There were no special needs. The older child was more excited to go than the younger child. The court did not find that the father had the ability to make the move. The court concluded there was a good-faith reason to move, and it wouldn’t be inimical to the children’s best interests.

The father appealed, arguing the reason for the move was not in good faith. The appellate court disagreed. It also found Baures applied to this case. The father argued that the Baures factors were in his favor but didn’t argue about any error made by the court or a fact-based contraindication. The appellate court found that the best interests standard didn’t apply. It explained that N.J.S.A. 9:2-4 applies to an initial custody determination but not relocation. Different standards applied to the different situations. The lower court’s decision was affirmed.

If you are considering divorce in Bergen County, and you are concerned about child relocation or visitation, it is important to retain an experienced and aggressive child relocation attorney to seek an appropriate outcome. Contact the lawyers of Leopold Law at (201) 345-5907 or through our online form. We have attorneys available who can handle all aspects of a divorce.

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