There are many reasons that people may decide to relocate. Families who live together may make the decision as a combined body. However, what happens when there is a divorce? Or, if the parents were never married? What does the law say when an NJ parent wants to relocate children?
In some cases, relocation may actually be addressed in a matrimonial settlement order. Frankly, this is not generally the norm. Notwithstanding, if a parent has an upcoming job prospect in another state, relocation concerns may be brought to the court’s attention as part of the divorce proceedings. This could also happen if the mother or father has extended family in another state.
It goes without saying that relocation can be stressful to both children and parents. For one, it may mean restrictions on parenting time. It may also add a financial burden.
Removal Statute in New Jersey
In best case scenarios, a mother or father may be able to negotiate their relocation intentions with their former spouse. Otherwise, the court will be asked to rule on the issue.
New Jersey specifically addresses the relocation of children in its removal statute, found at NJSA 9:2-2. According to the statute, children can be removed from New Jersey with the consent of both parents. Otherwise, the court will be called to rule on the issue. Just how is this determined?
The Baures Criteria and Relocation
Let’s start with Baures v. Lewis, 167 N.J. 91 (2001). As a result of this case, somewhat of a checklist developed in child removal cases. Here are the twelve factors considered as a consequence of the Baures case:
- 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 reasons advanced by both parties for supporting and opposing the move;
- Whether the child will receive educational, health and leisure opportunities at least equal to that 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, and
- Whether a visitation and communication schedule can be developed that will allow the non-custodial parent to maintain a full and continuous relationship with the child;
- The likelihood that the custodial parent will continue to foster the child's relationship with the non-custodial 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 which point he or she should generally not be moved until graduation without his or her consent;
- Whether the non-custodial parent has the ability to relocate; and
- Any other factor bearing on the child's interest.
Just a few weeks ago, the New Jersey Appellate Division considered a removal case that may be of interest. Since the case falls under the category of unpublished decision, it is not precedential law. Rather it only applies to the named parties.
New Out of State Removal Case
The parties in this legal opinion are Danielle Delorenzo-Taglia, now known as Danielle Flores and Eric Taglia. In April of 2010, they signed a consent order that was incorporated into their divorce decree. Although the couple agreed to joint custody, their two daughter’s primary residence was with their mother.
Apparently, relocation was a consideration at the time of entry of the court order. There were provisions for parenting time in the case that Danielle moved to Texas.
It wasn’t until 2014 that Danielle decided she wanted to move to Texas. At the time, the former couple’s daughters were thirteen and nine. Danielle had remarried, and her husband and his other children resided in Texas.
Notwithstanding, Eric made an argument regarding his close relationship with his children. He cited his involvement in both their school and extracurricular activities. Eric also provided proof of the frequency of his parenting time.
In order to evaluate the matter, the court sought expert opinion from a clinical psychologist, John Schmerler, Ph.D. Dr. Schmerler evaluated the relocation motion in accordance with the conditions expressed in the Baures case. He determined that Danielle had determined that “had a good faith reason for the move, as her new husband and his children resided in Texas, and her husband's business was there.”
However, this was not the sole reason for the recommendation to the court. The doctor noted that Danielle proposed that the children still have an acceptable amount of contact with their father. Additionally, the relocation would not be detrimental to the children’s best interests. Dr. Schmerler cited additional reasons for his opinion.
In the meantime, Eric’s attorney retained an expert on his client’s behalf. Ravinder Bhalla, M.D., a psychiatrist, conducted a best interests analysis. His opinion was that the children should stay in New Jersey with their mother. Dr. Bhalla did not use the Baures criteria.
When Dr. Schmerler was presented with Dr. Bhalla’s report, he did not disagree with the latter’s assessment under the best interests standard. Notwithstanding, he renewed his opinion that there were “insufficient contraindications” to allow the relocation using the Baures criteria.
Fast forwarding to the court’s conclusion, the matter was determined to fall under the statute concerning removal. For that reason, Baures was important. Danielle proved “that she had a good faith reason for the move and the move would not be inimical to the children's best interests.” She would, therefore, be permitted to relocate the children to Texas.
At the Law Offices of Sam Stoia, we realize that removal cases can be difficult on either parent. There is no charge for our initial consultation to discuss your circumstances. Contact our office to schedule an appointment.