United States: Relocation – What Does The Custody Agreement Say?

Last Updated: January 31 2015
Article by Robert A. Epstein

The issue of relocation comes up all the time between divorced parents.  One day mom calls dad and tells him that she plans on moving with the kids from Hoboken to Cherry Hill.  Perhaps she plans on moving into Manhattan from Morristown.  Whatever the intention, there is going to be an impact on the child and often an impact on an existing custody and parenting time arrangement.

The moving parent often argues that the move will be in his or her own best interests and, as a result, it will also be in the child's best interests.  The other parent often argues that the move can only be against the child's best interests because he or she will have potentially have less time with the child, or the time will be somehow altered, and the relationship will suffer, as a result.  Cases on this subject examine both points of view.  This, however, does not make the process any easier for either party, or, more importantly, the child at issue who may even be too young to realize what is happening until it is already done.

For instance, now mom and dad may live five minutes away from each other and everything has been going great from a parenting perspective since the divorce.  If dad has two overnights with Little Bobby every week, however, is that still going to be possible if mom is moving two hours away?  More importantly, is it still in Bobby's best interests to travel back and forth for such a distance that frequently even if the time could feasibly still occur pursuant to the original schedule?  We have previously blogged that if the parent seeking to relocate is the primary residential custodian, the law makes it easier for an interstate (across state lines) or intrastate (within New Jersey) move than if there was a joint residential custodial arrangement, in which case the court will simply consider if the planned move is in the child's best interests.

These legal standards often lead parents to include language in their custody and parenting time agreements addressing the issue of relocation.  While absolutely preventing some future move based on an agreement's language may or may not hold up in court when the family judge is charged with analyzing a request based on its facts and circumstances in connection with the particular child at issue, the judge will still look at and consider the language mutually and voluntarily reached by the parties on the issue.

In Clemas v. Clemas, a new unpublished (not precedential) decision from the Appellate Division, the Court affirmed the trial court's denial of a dad's effort to restrain mom from relocating with the parties' children from Bridgewater to Egg Harbor.  The divorce settlement agreement provided that the parties would share joint legal custody (over major decisions) of the kids, with mom designated as the primary residential custodian.  They also agreed to designate Bridgewater as the desired school district "so long as one party is domiciled in the district", but that when "either party applies to the Court to convert the Divorce from Bed & Board into a Final Judgment of Divorce, this provision shall be null and void."

When mom filed to convert the divorce into a final judgment, dad learned from the kids that mom planned to move and cross-moved to restrain the move to Egg Harbor (approximately two hours away).  The trial judge denied dad's request to stop the move finding that, because mom was the primary residential custodian, she was permitted to move within New Jersey.

On appeal, the dad argued that the trial court should not have denied his motion because the settlement agreement provided that mom's designation as primary residential custodian "is for child support purposes and does not give either parent and enhanced or diminished parenting authority to either party."  On this point, the trial judge held that this language did not alter mom's right to relocate but, rather, only impacted upon joint legal custody decisions.  The Appellate Division agreed.  The judge also held that dad failed to demonstrate "changed circumstances" infringing upon the best interests of the kids, and had identified no reason why the new school district could not accommodate the kids' needs, or demonstrate that he would not be able to maintain the same parenting schedule or a "reasonable alternative."

Importantly, the trial judge also held that the agreement considered mom's possible relocation when the divorce was finalized because the kids were no longer required to attend school in Bridgewater.  In other words, the geographic restraint was only temporary and no other restraints were included.

The Appellate Court agreed that the agreement did not prohibit mom from moving with the kids, nor was she required to make an application with the family court to do so.  Analyzing the legal standard for a primary residential parent to move within New Jersey, the Appellate Court noted that to have a trial on the issue, the parent opposing the relocation must make a showing that "a genuine issue of fact exists bearing upon a critical question such as the best interests of the children, interference with parental rights, or the existence of a good faith reason to move."  Dad did not fulfill this initial burden.  The move, as a result, was upheld.

This case ultimately addresses the importance of including language in a custody and parenting time agreement regarding relocation, which, as always, is dependent upon a given set of circumstances and, of course, whether you are the primary residential custodian, the parent of alternate residence, or a shared residential custodian with equal parenting 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.

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Robert A. Epstein
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