State Supreme Court Agrees Trial Court Judge Erred in Denying Custodial Parent’s Request to Relocate

A New Jersey statute designed to protect the rights of non-custodial parents and their children and maintain their relationship may have unfairly affected the rights of custodial parents, but case law is changing to address this inequity.

This situation came to light recently in the case of Morgan v. Morgan, a New Jersey couple who divorced in 2005. As part of their divorce settlement, the couple was granted joint legal custody of their two daughters, with the mother being the residential parent and the father having custody every other weekend, and one evening, and one overnight per week. He was also granted two weeks vacation time with the girls each year. (1)

When circumstances in the mother’s life changed and she contemplated relocating with her daughters to her home state of Massachusetts, the father filed a motion to re-determine custody. The mother filed a cross-motion requesting permission to relocate. These motions were filed in November 2005, at which time the trial judge denied the custody motion. A hearing on the relocation issue was held in 2007. This, too, was denied by the judge, who stated the mother’s reasons for relocating were not “valid” and the father’s relationship with his daughters could not be sustained under a new visitation schedule. (1)

Last year, the State Appellate Division reversed the lower court ruling and granted the relocation motion. That decision was upheld by the State Supreme Court just this month. (2)

In its decision, the Supreme Court noted that the State statute regulating the custodial parent’s right to relocate children out of state has the effect of holding the custodial parent hostage while allowing complete freedom of movement to the non-custodial parent. The 2001 case of Baures v. Lewis addressed this inequity and changed the way courts decide relocation motions. From that case came a two-part test, known as the “Baures test,” courts now consider when deciding relocation motions: the parent requesting the move must prove “good faith” reasons for the move and also must show the child will not suffer as a result. That case also determined that a simple change in parenting time is not a good enough reason to deny a motion to move. (3)

Custody issues are complicated matters in which New Jersey courts try to protect the rights and meet needs of all parties involved.




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