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It's Not Easy to Relocate a Child of Divorce Away From the Other Parent

Just_divorced.jpgA New Jersey Family Court judge's order resolved the question of whether or not a custodial parent can relocate to another state when the other parents objects. It said that a 20% increase in salary by the custodial parent is not enough to justify relocation.

The child's mother wanted to relocate with the child to Florida and the father objected. When one parents wants to relocate, he or she must show "changed circumstances sufficient to warrant obtaining primary physical custody." But New Jersey courts apply one of two standards, depending on whether the custody is truly "shared" - in the sense that both parents almost equally share in each and every responsibility with respect to the child. On the other hand, a parent that shares very little time will have a weaker case to make in a removal action. In this case, custody was shared.

The mother emigrated to the U.S. from Cuba in 1999 and settled in Florida, moving to New Jersey 5 years later. She met and married her husband and they had a daughter in 2009. They divorced 6 years later. As part of their Divorce Agreement, the father was to have the daughter every other weekend, and every Monday and Wednesday from 5:30-8:00 PM.

Father and daughter had a close and frequent relationship that involved many activities. He regularly took care of his daughter when the mother was unable to. Under the divorce agreement, there was no relocation conceived of or mentioned. Given that fact, the judge said that both parents had a right to presume that neither would leave New Jersey.

Interestingly, the divorced couple continued to live together for 16 months with their daughter after the divorce. After the mother finally moved out, the father continued to have regular contact with his daughter, except for a three-week Florida/Cuba vacation he agreed to in August 2016. The next month, the wife told him that she wanted to move to Florida. When he objected, she refused to allow him to see their daughter, except at the specific times. She filed with the court to allow her to immediately remove the child to Florida. This was denied.

This judge looked at the mother's employment/education history, which included a Master's degree in Analytical Chemistry. She was regularly employed (by numerous companies) in her chosen field of chemistry until August 3, 2016, when she was laid off. She was making roughly $63,000 annually. She then began looking for a job in Florida, which she did not mention to her ex-spouse. She found a job in Florida with a salary of $80,000 annually. She claimed in court that many pharmaceutical companies (her specialty) had recently left New Jersey.

The judge found that in the 16 month post divorce period where the family remained in one home, the father paid all expenses and shared 50/50 in the responsibilities of taking care of their daughter. This allowed the mother to save the majority of her earnings. The wife said that the main reason for the relocation was the job offer with a substantial salary increase from her previous employment.

She also said that she had many family members in Florida, some of whom would be attending the same school as her daughter. She also claimed that Florida has a much lower cost of living and that she would be able to provide the child with a better living situation. New Jersey courts apply a 12-factor test in considering a removal case, which includes questions about how the removal would affect the child's life - as well as the noncustodial parent's visitation rights.

The father countered by saying that the relocation was done "in order to alienate his daughter from him; that the parties had functioned, in fact, as joint legal and residential custodians of their child and that the ex-wife did not make any meaningful effort to find employment in the New York metropolitan area." The the judge ordered a hearing and both sides gave their own and expert testimony, which obviously arrived at opposing conclusions.

The judge applies the twelve-factor test and found that the mother failed to prove that she really searched for a local job with the level of attention necessary to justify a relocation order. Her move would effectively terminate the physical father-daughter relationship mandated by the divorce agreement. He would essentially lose his visitation rights.

Also, she failed to make a proposal that would adequately remedy the problem of the lost physical visitation rights of the father. There was no plan about what would happen if circumstances changed in the future, or other unforeseeable events.

The judge also considered the viability of the father relocating to Florida. He had two older college age children from a prior marriage going to school in the area, who regularly interacted with their young step-sister. He said that he should not be forced to choose between his two eldest children and his youngest daughter. He also said that he should not be forced to sell his pre-marital home. A $17,000 increase in a non-guaranteed job did not justify the harm that would come to the girl in effectively losing contact with her father. Said the judge:

"New technology will not substitute for personal contact, it can only help maintain some semblance of a parent-child connection. To sustain any kind of close relationship with her father, he must continue to be involved in all aspects of her life and care. Under the facts and circumstances presented herein, should [the child] be permitted to relocate to Florida, [the father] would become a long distance father and, such a long distance parent would become, at best, a mentor, something like an uncle and not a dad.

... the Court concludes that a relocation to Florida with the child cannot be accomplished without significant detriment to [the child] and such a move is not in her best interests. The [mother's application] to allow her to permanently relocate to Florida with [the child] is denied."

Evan Xavier Bakhet is a J.D. Candidate at Rutgers School of Law-Newark with a scheduled graduation date in 2017. He collaborated with me on this blog.

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