Today, the majority of courts consider the best interests of the child – including the importance of a relationship with the noncustodial parent – in determining relocation applications. However, some states are still using outdated laws that favor the parent seeking to relocate.
By Sheryl J. Seiden, Family Lawyer
Relocation presents courts with the difficult dilemma of permitting a child to relocate to be with one parent despite the toll it may take on his or her relationship with the other parent. These cases present some of the most difficult issues that matrimonial practitioners and family law judges grapple with.
In New Jersey, N.J.S.A. §9:2-2 prohibits a child who is a native of the state from being removed from the state without the consent of both parties, or permission of the Court upon “cause shown”. In a traditional parenting case, the law in NJ is dictated by the well-known NJ Supreme Court case of Baures v. Lewis, 167 N.J. 91 (2001), which created a presumption favoring relocation. The parent seeking to remove the child initially bears a two-pronged burden of proving: (1) that there is a good-faith reason for the move; and (2) that the move is not inimical to the child’s best interest. (Baures, 167 N.J. at 111.) In determining whether the moving party has satisfied his or her burden, the Court needs to examine the factors enumerated in Baures.
A Pro-Relocation Position
A dissection of Baures reveals that there were three primary reasons that the Court ultimately embraced a pro-relocation position. The first reason was that in 2001, technology had evolved to make it relatively easy for people to connect with their children from afar. Although technology has continued to advance since the Baures decision, these advancements cannot replace physical parenting of a child.
The second reason was based on social-science data that concluded that what is good for the custodial parent is also good for the child – and that so long as the child had regular communication with the noncustodial parent, the child’s interests were served. These conclusions were based upon studies opined upon by Dr. Judith S. Wallerstein, which were never challenged in the Baures case. Had her opinion been contested, the subjectivity of the data Dr. Wallerstein used could have jeopardized the studies. Furthermore, the social science relied upon in Baures is now more than 20 years old; since the decision, new studies seem to suggest that the involvement of the noncustodial parent in the life of a child plays a significant role in the child’s development.
The third reason was that the case law of seven other jurisdictions evidenced a liberal trend in relocation cases. The Court was particularly focused on the fact that other states had reduced the burden on the custodial parent seeking to relocate; now, nearly 15 years later, the law in most of these other jurisdictions has changed. In two of those states (Colorado and Minnesota), the law has changed. In four of the other states (California, New York, Tennessee, and South Dakota), the law has hardened, making it more difficult to relocate. The law has remained unchanged in only one of the seven states (Wisconsin).
Old Case Law Favored Relocation
In rendering the Baures v. Lewis decision, the Court relied upon the Colorado Supreme Court’s decision in In re Marriage of Francis, 919 P.2d 776 (1996), which created a presumption that generally permitted a custodial parent to relocate with a child. The three-part test established in Francis to be applied in Colorado relocation cases was abolished by legislation on September 1, 2001 – just four months after the NJ Supreme Court decided Baures v. Lewis.
Thereafter, in the case of In re Marriage of Ciesluk, 113 P.3d 135 (2005), the CO Supreme Court confirmed that Francis, 919 P.2d 776 (1996) was superseded by statute, and the Court would now rely on Dr. Braver’s study – which is contrary to Dr. Wallerstein’s social science research.
In deciding Baures, the Court was also particularly interested in the California Supreme Court’s decision in In re Marriage of Burgess, 913 P.2d 473 (1996), where the Court abandoned a prior hostile approach toward relocation, which the Court interpreted as a trend in favor of relocation. Approximately three years after Baures was decided, in In re Marriage of LaMusga, 88 P.3d 81 (2004), the CA Supreme Court limited the presumption in favor of relocation by holding that the detrimental effect of the relocation on the noncustodial parent’s relationship with the child has a bearing on the child’s best interest.
At the time that Baures was decided, the NJ Supreme Court also took note of the fact that its sister State of New York had lessened the burden on custodial parents seeking to relocate in Tropea v. Tropea, 665 N.E.2d 145 (1996). However, over the last 19 years, the standard in NY for relocation continues to remain a difficult one to overcome for the custodial parent, as the lower courts in New York place an onerous burden on the custodial parent seeking to relocate.
In Baures, the Court also cited the South Dakota case of Fortin v. Fortin, 500 N.W.2d 229 (1993) in its opinion in support of the state’s presumption in favor of removal. While the presumption of the statute as favoring removal in Fortin has not been overturned, the law in South Dakota is a best-interest analysis. (See Brosnan v. Brosnan, 840 N.W.2d 240 ). Since Fortin, other cases have been distinguished from it, and the SD Supreme Court has changed custody from the custodial parent to the noncustodial parent based on the custodial parent’s relocation, where it found that relocation was not in the child’s best interest. (See Berens v. Berens, 689 N.W.2d 207 .)
In adjudicating Baures v. Lewis, the Court also referenced Tennessee law, citing the case of Taylor v. Taylor, 849 S.W.2d 319 (1993) for creating a “strong presumption” in favor of relocation of the child and the custodial parent. (Baures, 167 N.J. at 224.) Since its 1993 decision in Taylor, the TN Court seems to have hardened with regard to what is considered to be a reasonable purpose for the relocation, as the case law thereafter limited the custodial parent’s right to relocate. More recent case law suggests that the term “reasonable purpose” has been interpreted to mean “significant purposes.” (See Webster v. Webster, 2006 Tenn. App. Lexis 685 [Tenn. Ct. App. Oct. 24, 2006].) While the NJ Supreme Court relied upon Taylor v. Taylor, 849 S.W.2d 319 (1993) in deciding Baures v. Lewis, the decisional case law rendered and statute enacted after Taylor evidence that once the noncustodial parent refutes the presumption favoring relocation, the standard becomes one of a best interest analysis.
In Baures, the Court also relied upon the Supreme Court of Minnesota’s decision in Auge v. Auge, 334 N.W.2d 393 (1983) and Sefkow v. Sefkow, 427 N.W.2d 203 (998) – concluding that MN had a presumption in favor of the custodial parent seeking to relocate, and the noncustodial parent had the burden to show that the relocation would endanger the child, or that it was meant to frustrate the noncustodial parent’s relationship with the child. However, in 2006, Auge v. Auge was overruled by statute whereby the presumption in favor of relocation was eliminated.
In adjudicating Baures v. Lewis, the Court considered the Wisconsin case of Long v. Long, 381 N.W.2d 350 (1986) in support of the belief that courts were easing the burden on custodial parents. While WI continues to be very liberal in its presumption of relocation, there were two dissenting opinions in Long v. Long, 381 N.W.2d 350 (1986), both of which recognized the difficulty on the noncustodial parent in relocation cases and emphasized that a best-interest test was more appropriate than the liberal presumption created by the statute. One of the dissenting opinions expressed concern about the harm to the child in granting relocation based on social-science research; this concept has not yet been used to challenge the current law in WI recognizing the presumption in favor of relocation, but stay tuned.
Focus on the Child’s Best Interests
The precedents the NJ Court relied upon in Baures v. Lewis can be challenged: most of the case law has been overruled or distinguished, and the trend in other states is to recognize the difficulty that relocation poses for the non-custodial parent. Today, more than half of the United States place the burden of proof on the parent seeking to relocate. More than half do not specify a presumption, and 20% specifically state that they do not have a presumption in favor of or against relocation. Nearly 75% of states have statutes on the issue of relocation, and another 84% of states consider the best interest of the child as part of the analysis when determining a relocation application. One-fifth of the states even define relocation based on the number of miles that the child would be moved – either from the non-custodial parent’s residence, or the child’s prior residence. Approximately one-third of states require that the parent seeking to relocate provide a specific amount of notice to the other parent.
The NJ Supreme Court recognized and adopted a prior liberal trend permitting relocation nearly 15 years ago, but that trend has shifted. Although the courts have previously examined the relocation from the perspective of the custodial parent, and other courts from the perspective of the non-relocating parent, the more recent trend has been for courts to consider the relocation based on the child’s perspective. It is for this reason that a majority of states focus on the best interests of the child in determining relocation applications.
Note: Ms. Seiden prepared a detailed analysis of this topic for the NJ Family Law Symposium in January 2015. To read it, go to: www.ccfamlaw.com/wp-content/uploads/2015/02/Relocation-Article-January-2015.pdf
Sheryl J. Seiden Esq. is a partner at Ceconi & Cheifetz, LLC, in Summit, NJ. She is an officer at the Family Law Section of the NJ State Bar Association and a former co-chair of the Young Lawyer Family Law Subcommittee. Ms. Seiden is a fellow of the AAML, and has lectured for the Institute of Continuing Legal Education on many occasions. www.ccfamlaw.com