How Will a Court Decide My Application for Relocation?

Feb 20, 2015

We have previously blogged about relocation when parents are divorced and share custody of their children.  In the recent unpublished New Jersey Appellate Court case, Schwager v. Schwager, the court discussed relocation, and specifically, examined the tests trial courts should use in relocation cases.

In Schwager, the parties shared custody of their twin children.  Upon the parties’ agreement, Defendant was designated as the parent of primary residence, while Plaintiff was labeled as a parent of alternate residence.  Both parties lost their jobs in the financial industry, forcing them to look for alternate work.  Defendant eventually received a job offer in Cleveland, Ohio, where she had family, while Plaintiff remained unemployed.  Defendant petitioned the court for permission to relocate with the children, which Plaintiff opposed but the court temporarily granted.  After a hearing, the judge approved of Defendant’s move with the children. 

On appeal, the Appellate Division reaffirmed the tests that a court should consider when considering relocation petitions.  The Appellate Division stated that courts must first look to the parents’ current custody situation.  If the parents split physical custody of the children, the court must consider relocation based on the best interests of the child.  See O’Connor v. O’Connor, 349 N.J. Super. 381, 399-400 (App. Div. 2002). 

If, however, the parties’ parenting time schedule places the children with one parent primarily and the other secondarily, then the court must examine the relocation petition under the two-part test set out in Baures v. Lewis, 167 N.J. 91 (2001).  This two-part test looks at: (1) whether the “custodial parent has a good faith reason for the move,” and (2) whether or not the children will be negatively affected by the move.  Under the Baures test, the court must consider twelve factors, such as the reasons for and against the move and the opportunities available to the child in the new location.  

When applied to the case facts, the Appellate Division upheld the trial court’s decision.  The court decided that after an examination of the Baures factors, defendant had shown that the move was in good faith and the children would not be harmed by the move.  Plaintiff failed to provide any evidence otherwise and his argument that the children would suffer simply from being farther from their father was not sufficient.   

While relocation can be difficult for any family, it is especially difficult when parents are divorced and share custody and only one parent plans to relocate.  If you are planning to relocate and it could potentially effect your child custody arrangement, call the experienced matrimonial attorneys at Sarno da Costa D’Aniello Maceri LLC for help with your case.  Call us today at (973) 274-5200.