By Jeralyn Lawrence | Law Law Firm, AAML NJ Immediate Past President
New Jersey courts previously analyzed divorce custody relocation cases differently, based on whether they were intrastate or interstate. Intrastate relocations of the parent with primary physical custody did not require that parent to file a motion with the court for permission to move the child. Instead, the other parent had the burden of proof and was required to file a motion objecting to the primary parent's move. By contrast, a primary parent who wished to move out of state had the burden of filing a motion with the court if there was a disagreement. While this difference between who has the burden in interstate and intrastate relocations has not changed, divorce lawyers should consider factors courts consider when analyzing divorce custody relocation cases have. In both types of relocations, courts now analyze them under the best interests of the child standard following the New Jersey Appellate Division's decision in A.J. v. R.J., 219 A.3d 579 (App. Div. 2019).
Historical Treatment of Relocation Cases
The New Jersey court had previously treated interstate and intrastate relocation cases differently. Relying on social science research, the New Jersey Supreme Court established 12 factors to consider when determining whether to allow an out-of-state relocation in Baures v. Lewis, 167 N.J. 91 (2001). Following that decision, the court gave more weight to the primary parent and would generally allow them to move out of state if good cause for the move was demonstrated.
In Schulze v. Morris, 361 N.J. Super. 419 (App. Div. 2003), the Appellate Division distinguished between interstate relocations like in Baures and intrastate relocations in which a primary parent relocated to a new city or county within New Jersey. Under the Schulze decision, the court did not consider intrastate relocations to be true relocations. The primary parent who wanted to move was thus not required to file a motion to relocate with the court. Instead, the alternate parent had to file a motion to oppose the primary parent's intrastate relocation with the court and present evidence that the relocation amounted to a substantial change in circumstance that was contrary to the best interests of the child because of the change in the alternate parent's parenting time with the child. If the parent could show that, the court would then consider the Baures factors.
The New Jersey Supreme Court overturned its decision in Baures for interstate moves in Bisbing v. Bisbing, 230 N.J. 309 (2017), holding that courts must apply the best interests of the child factors found in N.J.S.A. 9:2-4(c) to interstate moves instead of presuming that such a move was better for the child. However, while this decision made it clear that the best interests of the child standard was to apply to interstate relocations, the Supreme Court did not address intrastate relocations. This question remained until the New Jersey Appellate Division's decision in A.J. v. R.J(commentary) in 2019.
Standard for Intrastate Relocations Under A.J. v. R.J.
In A.J. v. R.J., the mother, who had primary residential custody, moved her child more than 60 miles away from the father's residence but remained in New Jersey. She did not ask for permission from the court or the father. The father filed a motion opposing the relocation, and the trial court issued an order to the mother to move back and live within 15 miles of the father's home so that the father's parenting time with his child would not be disrupted. However, the mother refused. The father filed a motion with the court to transfer custody of the child to him because of the mother's contempt of the court's order.
The Appellate Division reversed the lower court's transfer of custody, holding that the trial court relied on Schulze when making its decision. The Appellate Division pointed out that Schulze, which dealt with intrastate relocations, had relied on the Baures factors. Since the Baures case was overturned by the New Jersey Supreme Court, the Appellate Division found that the factors no longer applied. Instead, the Appellate Division held that the best interests of the child factors in N.J.S.A. 9:2-4(c) must be considered to determine whether an intrastate relocation is in the child's best interests.
While this decision means that both interstate and intrastate relocations now must be analyzed according to what is in the child's best interests instead of giving a presumption that the primary residential custodian's choice to move will likely increase the child's happiness, there is still a difference in which parent has the initial burden.
In interstate relocation cases in which a primary parent wishes to move with a child out of state, the parent wishing to move must seek permission from the court by filing a motion to relocate. He or she will then have the burden of proving that the proposed relocation is in the best interests of the child before the court will permit the move.
By contrast, in intrastate relocation cases, the primary parent does not have to ask the court's permission before moving with the child within New Jersey. Instead, it remains the other parent's burden to file a motion in opposition to the relocation, and he or she must also present evidence showing that the intended move is inimical to the best interests of the child in order to prevail.
While it is good that both interstate and intrastate relocation cases are now analyzed under the best interests of the child factors, the difference in who has the burden of proof in interstate vs. intrastate relocation cases seems somewhat arbitrary. For example, if a primary parent decided to move to New York City from Bergen County, New Jersey, the moving parent would have the burden of proof even though the relocation would be relatively close to the alternate parent's residence.
If the same parent decided to relocate across the state of New Jersey from Bergen County to Cape May, but remained within the state, the other parent would have the burden of proof regarding that move. Regardless of which parent has the burden of proof, the parent must present evidence about what is in the child's best interests whether the proposed relocation is interstate or intrastate.