By: Sheryl J. Seiden[1]

In our ever mobile society, relocation after a divorce is a very realistic option for a parent. The advancement in technology and efficiency of transportation have increased the ability for mobility over the years. After a divorce, a parent seeking to move on to the next chapter in his or her life often will want to relocate to be closer to family or a significant other or for career advancement.

In a divorce, the parties' marriage will be dissolved yet they will continue to be tied together as parents until their children are emancipated, and often long thereafter. The issue of relocation presents courts with the difficult dilemma of permitting a child to relocate to be with one parent at the cost of the child not having the opportunity to maximize his or her relationship with the other parent. Relocation cases present some of the most difficult issues that matrimonial practitioners and our family law judges grapple with during our careers.

In New Jersey, the law on relocation in a traditional parenting case is dictated by the well-known Supreme Court of New Jersey case of Baures v. Lewis, 167 N.J. 91 (2001). Baures created a presumption which favors relocation. The Baures case was decided when the parties' son Jeremy was only eleven years old. This "child" is now twenty-four and a half years old. Over the last fourteen and a half years since this case was decided, a lot has changed. While technology has advanced since Baures was decided, the case law of other jurisdictions relied upon in Baures has changed. The social science research relied upon in Baures also has been challenged. This article is intended to focus on how the presumption in favor of relocation developed and how the underlying theories and case law relied upon by the Supreme Court of New Jersey in Baures are no longer applicable in today's society nearly fifteen years later. Just as Jeremy Lewis's life has evolved, it is now time for New Jersey's laws on relocation to also evolve consistent with today's society.

The Current State Of The Law On Relocation In New Jersey

N.J.S.A. §9:2-2 prohibits a child that is a native of the State of New Jersey from being removed from the state without the consent of both parties or permission of the Court upon "cause shown". New Jersey has two different standards to be applied in removal cases depending on whether the parties have a traditional custodial relationship where one parent is the primary parent or whether the parties have a shared custodial relationship. In adjudicating a removal application, the seminal question is "whether it is a removal case or whether by virtue of the [custodial] arrangement between the parties, it is actually a motion for a change in custody." Baures v. Lewis, 167 N.J. 91, 116 (2001).

A Best Interest Standard Applies In A Shared Custodial Arrangement

When the parties have a true shared custody arrangement, the Court applies a stricter standard in adjudicating a removal application. Specifically, in a true shared custody arrangement, the right to remove a child from the State of New Jersey requires a change in the custodial arrangements between the parties. Baures, 167 N.J. at 115. In such a case, the party seeking to change custody has the heightened burden of demonstrating that there is a substantial change in circumstances since the current custody arrangement was established and that the best interest of the child necessitates said change in custody. O'Connor v. O'Conner, 349 N.J. Super. 381, 385 (App. Div. 2002); Chen v. Heller, 334 N.J. Super. 361, 381 (App. Div. 2000).

In determining whether the parties have a shared parenting arrangement, the Court must examine the amount of time that each party spends with the child and each party's responsibilities for the custodial functions and duties in caring for the child. O'Conner, 349 N.J. Super. at 385. In O'Conner, the Court specifically recognized the need to look beyond each minute that a parent spends with the child in determining whether a shared parental relationship exists as the Court stated: "although the division of the child's time with each parent is a critical factor, the time each parent spends with the child must be analyzed in the context of each person's responsibilities for the custodial functions and duties normally reposed in a primary caretaker." Id. at 385.

A Presumption Favoring Removal Exists In A Traditional Relocation Case

In a traditional removal case, 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 following twelve factors enumerated in Baures:

  1. The reason given for the move;
  2. The reason given for the opposition to the move;
  3. 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;
  4. Whether the child will receive educational, health, and leisure opportunities at least equal to what is available for the child at the time;
  5. Any specific needs or talents of the child that require accommodation and whether such accommodation or its equivalent is available in the new location;
  6. 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;
  7. The likelihood that the custodial parent will continue to foster the child's relationship with the non-custodial parent if the move is allowed;
  8. The effect of the move on the extended family relationship in the current and new location;
  9. If the child is of age, his or her preference;
  10. 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;
  11. Whether the non-custodial parent has the ability to relocate; and
  12. Any other factors bearing on the child's best interest.

Id. at 116-117.

Once the moving party establishes a prima facie case supporting the relocation, then the parent opposing the removal must demonstrate that the proposed move either is not in good faith or is inimical to the child's best interest. The moving party will then be permitted to produce additional evidence to refute the non-moving party's opposition such as evidence regarding his or her motives in opposing the move.

The burden which must be met by the moving party is actually less stringent than the burden placed upon a parent seeking to change custody when the parties both reside in close proximity. In some circumstances, the New Jersey courts have granted a parent's application to relocate with a child without even conducting a plenary hearing to determine whether the parent has met his or her initial burden. Barblock v. Barblock, 383 N.J. Super. 114 (App. Div. 2006) ("No reported case holds that a plenary hearing is inexorably required to resolve contested applications to relocate a child from the State of New Jersey."); Pfeiffer v. Ilson, 318 N.J. Super. 13 (App. Div. 1999) (holding that a plenary hearing is only necessary when a prima facie showing is made that a genuine issue of material fact exists as to a "critical" issue, such as "the best interests of the children, interference with parental rights, or the existence of a good faith reason to move.").

New Jersey Law on Relocation Before Baures

Despite the numerous factors enumerated in Baures, it has long been recognized that New Jersey has established a presumption in favor of relocation in traditional custodial cases.

In Baures, the Supreme Court of New Jersey grappled with the conflict between the custodial parent's need for autonomy and the noncustodial parent's belief that if the child relocates, his or her connection to the child will be lost forever. In addressing this struggle, the Court reviewed the prior case law which recognized that "the identity of the interests of the custodial parent and the child, and as a result, accords particular respect to the custodial parent's right to seek happiness and fulfillment." Baures, 167 N.J. at 97.[2]

In Holder v. Polanski, 111 N.J. 344 (1988), the relocation case that preceded Baures, the Supreme Court of New Jersey noted that there are no restrictions on the non-custodial parent in terms of relocation. Seealso, D'Onofrio v. D'Onofrio, 144 N.J. Super. 200 (Ch. Div. 1976), aff'd, 144 N.J. Super. 352 (App. Div. 1976). The Court specifically stated: "[a]s men and women approach parity, the question arises when a custodial mother wants to move from one state to another, why not?" Holder, 111 N.J. at 349.

In 1984, before Holder v. Polanski was decided, the Supreme Court of New Jersey addressed the issue of what was sufficient cause for the Court to grant a custodial parent's application to relocate with his or her child in the case of Cooper v. Cooper, 99 N.J. 42, 56 (1984). In Cooper the Supreme Court held that to establish sufficient cause for removal, the custodial parent must first show that there is a real advantage to the parent in the move and that the move is not inimical to the best interests of the child. Cooper, 99 N.J. at 56. The Court held that the advantage had to be a sincere and genuine desire of the custodial parent to move and a sensible good faith reason for the move. Id. If the custodial parent can meet this initial burden, then the Court will consider visitation and other factors to determine whether the custodial parent has sufficient cause to permit the removal under the statute. Id. The Court then would examine three factors: (1) whether the quality of life of the child and custodial parent would be maintained or enhanced by the move; (2) the integrity for the move and opposition to the move; and (3) whether a reasonable and realistic visitation schedule could be achieved after the move. Id. at 56-57. The standard established by the Supreme Court in 1984 made it difficult for the custodial parent to obtain permission to relocate as the Court stated that the "statutory language affirms that the purpose of the statute is to preserve the rights of the noncustodial parent and the child to maintain and develop their familiar relationship. This mutual right of the child and the noncustodial parent to develop and maintain their familiar relationship is usually achieved by means of visitation between them. Id at 50.

In its decision, the Court in Baures v. Lewis, noted that historically, courts throughout the country had disfavored removal of a child from its jurisdiction based on a concern that it would destroy the relationship between the noncustodial parent and a child.[3] The Court further recognized that the historical trend disfavoring relocation had been related to a shift in the presumption in support of relocation given the geographic mobility of the United States population and the demands placed on parties post-divorce.[4] The Court noted that within four years of a divorce or separation, mothers with custody of a child move to a new location. Id. at 105. These statistic were consistent with the trend in the United States at the time whereby one in five Americans relocate every year. Id. at 105.

How The Presumption For Relocation Developed In Baures

A dissection of Baures v. Lewis reveals that there were three primary reasons that the Court provided for ultimately embracing a pro-relocation position. One of the reasons for the shift in the presumption in favor of relocation is that in 2001, technology had significantly evolved. These advances in technology made it easier for people to connect with one another from afar.

By the time that Baures was decided in 2001, technology had advanced since the Court had decided the case of Cooper v. Cooper, 99 N.J. 42, in 1984. In the seventeen years that lapsed since deciding Cooper, the internet was released into the public domain, the affordability and means for public transportation became more feasible, and long distance telephone calling rates were more competitive.[5]

The second reason considered by the Baures' Court in establishing the presumption in favor of relocation was based on the social science data relied upon which "uniformly confirmed the simple principle that what is good for the custodial parent is good for the child." Baures v. Lewis, 167 N.J. at 106.[6] The Court further indicated that scholars had concluded that "so long as the child has regular communication and contact with the noncustodial parent that is extensive enough to sustain their relationship, the child's interests are served." Id. at 107.[7] The Court concluded that "[i]n short, a happy, productive, supportive custodial household along with a loving, sustaining relationship with the noncustodial parent are what is necessary to the adjustment of a child of divorce." Id.[8]

The third reason considered by the Court in Baures 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 "many courts have significantly eased the burden on custodial parents in removal cases." Id. at 108. The Court considered the law in the following other jurisdictions in making its determination to relax the laws of relocation in New Jersey: California, Colorado, Minnesota, New York, South Dakota, Tennessee, and Wisconsin.

The Court took particular interest in how the relocation laws in New York, California and Colorado had shifted to become more liberal in permitting a custodial parent to relocate. Specifically, at the time that Baures was decided, the New York Court of Appeals had replaced the term "exceptional circumstances" with the general "best interests" test in relocation cases. Tropea v. Tropea, 665 N.E.2d 145 (N.Y. 1996). Before Tropea was decided, in New York, absent proof of exceptional circumstances justifying the intended relocation, and if the noncustodial parent would be deprived his or her regular access to the child, a litigant's application to relocate would be denied. Tropea, 665 N.E.2d at 149-50. The New York Court of Appeals changed the focus from that of the needs of the parents to that of the best interest of the child in its 1996 ruling in Tropea.

The Supreme Court of New Jersey also examined the then relatively recent ruling in In re Marriage of Burgess, 913 P.2d 473 (Cal. 1996) where the California Supreme Court rejected a rigid test which required the custodial parent to demonstrate a necessity for the move in order to be able to relocate. The Burgess Court established a standard whereby the lower courts were directed to take into account the custodial parent's "presumptive right" to relocate – this decision shifted the trend in the law to a presumption in favor of relocation. As the Supreme Court of New Jersey stated in Baures: "the California Supreme Court abandoned the prior hostile approach taken toward the custodial parent in relocation cases." Baures, 167 N.J. at 108.

In Baures, the Supreme Court of New Jersey also focused on the Colorado case of In re Marriage of Francis, 919 P.2d 776 (Colo. 1996) where the Court reversed a trial court's denial of a parent's request to relocate to attend school and even held that the parent would lose custody if she enrolled in the out of state program. The Colorado Supreme Court held that "the child's interests are so interwoven with the new family unit that a court must consider the custodial parent's interests." Baures, 167 N.J. at 109. As a result, the Colorado Supreme Court created a presumption favoring removal.

In adjudicating the presumption in favor of relocation, the Supreme Court of New Jersey observed a trend among other jurisdictions which provided a more liberal approach to relocation and thereafter chose to join in this new trend.

Technology Cannot Replace Hands-On Contact With A Child

There can be no debate that since Baures was decided in 2001, technology has advanced significantly. In 2001, the concept of a smart phone was unknown. Social media websites had not yet been discovered. The ability to Skype, or face-time did not exist, and long distance phones were costly as unlimited calling plans were not in existence. It cannot be disputed that the ability to communicate with a child residing out of state today is much easier than it was fourteen years ago. Today, a party can leave a business dinner to FaceTime with a child to say good night or can send a text, email or video message wishing a child sweet dreams. Years ago, the only means of saying good night to a child out of state was by placing a telephone call.

Not only has technology advanced today but so too has our transportation system. From 2001 to 2013, the number of passengers traveling through Newark Liberty International Airport has increased by four million.[9] There also has been a 51% increase in passenger travel on Amtrak from 2001 to 2013.[10]

The concept of the internet has been used by some courts to create virtual visitation. Virtual visitation is a means of using email, instant messaging, webcams, and other internet uses to provide contact between a parent and a child.[11] Virtual visitation has been ordered by courts in cases where one party has relocated as a means of having a child remain in close contact with the noncustodial parent.

The first New Jersey case to endorse virtual visitation was that of Chen v. Heller, 334 N.J. Super. 361, 375 (App. Div. 2000) where the trial court denied a mother's request to relocate with her child but ordered that "each party set up computer-assisted video conferencing in their respective homes at their own cost" to facilitate continued contact for the child and the parents. Although the Appellate Division reversed the denial of the mother's application for relocation, the court continued in effect the provisions of the trial court's order that required both parents to set up video conferencing to enable communication between the child and the parents from long distances. Chen, 334 N.J. Super. at 375.

In McCoy v. McCoy, 336 N.J. Super. 172 (App. Div. 2001) in reversing the trial Court's denial of a mother's request to relocate to California with the parties' special needs daughter, the Superior Court of New Jersey, Appellate Division, specifically considered the opportunity for virtual visitation. In McCoy, as part of the proposed Parenting Plan, the mother offered to build a website which would include the use of camera-computer technology to provide the child and her father with the ability to communicate with each other daily despite the distance between them. The ability and willingness to provide for virtual visitation assisted in the Superior Court of New Jersey, Appellate Division's decision to permit the mother to relocate from New Jersey to California. As the Court specifically stated, "[w]e believe that Plaintiff's suggested use of the Internet to enhance visitation was both creative and innovative." Id. at 182.

New York was the first state to address internet visitation in the United States.[12] In Lazarevic v. Fojelquist, 175 Misc. 2d 343 (N.Y. Sup. Ct. 1997), the Court permitted the mother to relocate with her son to Saudi Arabia but required her to hire, at her own expense, a computer consultant in both New York and Dhahran to set up computer systems to permit the father and the son to communicate via the internet and facsimile. In Lazarevic, the Court relied upon technology to facilitate virtual visitation.

Florida also addressed the concept of virtual visitation in Kaleita v. Sniderman, Docket No. 99-DR-4601 (Fla. Seminole County Ct. Oct. 30, 2000), wherea Florida Circuit Court judge transferred custody of a ten year old girl where a mother sought to relocate to Ohio to be with her new husband and the court found that the child's quality of life would not improve if the relocation was granted. After transferring custody, the Court ordered both parents to install new, separate telephone lines in the child's bedroom and to maintain video conferencing equipment and software for the child's use to permit her exclusive and unrestricted access to both parents until her eighteenth birthday.

North Dakota also recognized the concept of virtual visitation in Tibor v. Tibor, 598 N.W.2d 480 (N.D. 1999), where the North Dakota Court noted that: "use of e-mail messages, making frequent telephone calls, and sending video tapes" were methods by which the noncustodial parent could maintain a relationship with his child after the mother's relocation.

Virtual visitation has been recognized by some states pursuant to state statutes. As of 2013, seven states had enacted virtual visitation laws and nineteen other states had drafted bills addressing virtual visitation.[13] In 2006, a draft virtual visitation bill was proposed in the New Jersey legislature – but it was not enacted into law.[14] While virtual visitation has been recognized throughout the United States, it cannot be used as a substitute for parenting time. Kenneth Waldron, a psychologist in the divorce arena has opined that virtual visitation may be appropriate for children between the ages of five and thirteen but that it certainly cannot be replacement for face-to-face contact.[15] Waldron specifically cautions that a child seeing a parent on a computer monitor cannot be a replacement for a hug or showing a parent a baseball trophy cannot compare to a parent having been at a game to witness the child's achievements. Id. Virtual Visitation for a young child is even more difficult given their short attention spans.

Some Courts in the United States have been skeptical of virtual visitation in denying a parent's application to relocate. For example, the Superior Court of Connecticut denied a parent's request to relocate to California where the other parent played an active role in the child's life noting that phone calls and emails cannot compensate for the fact that the "father-child relationship" would be "forever altered" by the relocation. See Nighswander v. Sudick, 2000 Conn. Super. Lexis 192 (Conn. Super. Ct. Jan. 26, 2000).

Similarly, the Court in Pennsylvania found that a mother's request to relocate would not be in a child's best interest despite the availability of technology. Marshall v. Marshall, 814 A.2d 1226 (Pa. Super. Ct. 2002). The Court stated: "[w]hile the Internet undoubtedly has fostered a myriad of ways for people to maintain communications and while computer video cameras allow people to ‘feel' closer even when separated by hundreds of miles, such technology cannot realistically be equated with day-today contact between parents and young children." Id. at 1233.

The states that have enacted statues providing for virtual visitation have disclaimers stating that it cannot be used in place of physical visitation between a parent and a child but should be used to supplement the physical contact.

Virtual visitation cannot be effective in the acrimonious divorce case. It is difficult to enforce and regulate virtual visitation in contentious cases. One parent may claim that the child is unavailable to skype with the other parent given his or her activity schedule or extensive homework load. Others may claim false technical difficulties to prevent the virtual visitation from occurring. Of course there is also the concern that one parent will interfere with the virtual visitation by remaining in close proximity to the child during the contact. Further, it would be difficult to maintain virtual visitation when the child has no interest in having contact with the other parent or perhaps the child is just not the type of child that enjoys speaking on the phone or video conferencing. In all of these cases, the virtual visitation ordered by a court may give the court a false hope for continued visitation when in fact the lack of physical contact makes it even more difficult for the noncustodial parent to be able to interact with his or her child in these types of cases.

Some courts have recognized that the concept of virtual technology cannot be used as a replacement for physical parenting time. In Tibor v. Tibor, 598 N.W.2d 480 (N.D. 1999), the trial court held that the mother's suggested supplemental means of communication for the child and the father through regular email, telephone contact and exchange of video tapes was insufficient to "preserve and foster" the relationship between the child and the father.

Despite the advancements in our technology, these enhancements cannot replace physical parenting of a child. Reading a child a bedtime story over skype is not the same as reading the child a bedtime story while snuggling in bed with him or her. Hearing about a child's soccer goal to win the game is not the same as physically being present to watch that milestone moment. Listening to a child's holiday concert recorded on video is not the same as sharing in this joyous event while watching the concert live.

The Social Science Relied Upon In Baures Is Outdated And Subject to Debate

In adjudicating Baures v. Lewis, the Supreme Court of New Jersey relied upon

social science and conclusions opined upon by Dr. Judith S. Wallerstein whereby she opined that "what is good for the custodial parent is good for the child." Baures, 167 N.J. at 106.[16] The social science relied upon was derived from Dr. Wallerstein's amicus brief submitted in the California case of In re Marriage of Burgess, 913 P.2d 473 (Cal. 1996). This social science data was never challenged in the Baures v. Lewis case decided by the Supreme Court of New Jersey. Had it been contested, the subjectivity of the data relied upon by Dr. Wallerstein would have been disclosed to the Court. First, of the ten social science articles used by Dr. Wallerstein, seven of them were derived from her own research groups.[17] Moreover, if Dr. Wallerstein's social science data was critiqued in Baures it would have been disclosed that the position cited by Dr. Wallerstein in Baures was contrary to her earlier opinion whereby she concluded that divorcing parents should have post-divorce arrangements that permit the child to foster a relationship with both parties.[18]

The Baures Court also references the research study of Mark F. Furstenberg and Andrew J. Cherlin to support the conclusion that "[a]though confidence that he or she is loved and supported by both parents is crucial to the child's well-being after a divorce, no particular visitation configuration is necessary to foster that belief."[19] This statement is based on a publication which relied upon two surveys conducted in 1976 and 1981 and there is no statistical data to support this statement.[20]

The social science relied upon in Baures is over twenty years old. Since Baures was decided, new studies seem to suggest that the noncustodial parent's role in the child's life plays a significant part of the child's development. In 2003, Joan Kelly and Michael Lamb published an article which addressed the importance of young children having regular interaction with their "attachment figures" in order to foster those relationship.[21]

In 2003, Sanford L. Braver, together with Ira M. Ellman and William V. Fabricius published an article reporting on a study involving 602 undergraduate psychology students whose parents were divorced. The study found that students from families in which either parent relocated were worse off than the students whose parents remained the same geographic vicinity post-divorce.[22] In 2003, Dr. Fabricius expressed his viewpoint "that lack of time together after relocation can damage the child's security and father/child relationship." [23]

It has been noted that cases such as Baures have either not been presented with or have overlooked the literature on the effects that relocation have on the noncustodial parent.[24] By using this literature together with the critiques of the social science data relied upon in Baures, the presumption in favor of relocation can be challenged.

The Case Law Relied Upon In Baures Has Changed

The Court in Baures examined the law in seven other jurisdictions to assist in creating the presumption favoring relocation. This case law, however, has changed over the last fourteen and a half years. In two of those states, the law has changed and in four of those states, the law has hardened in relocation cases, and in only one of the seven states, the law has remained unchanged.

Colorado Has Replaced Its Presumption Return
In Favor Of Relocation With A Best Interests Analysis

In rendering the Baures v. Lewis decision, the Supreme Court of New Jersey relied upon the Colorado Supreme Court's decision in In re Marriage of Francis, 919 P.2d 776 (Colo. 1996), where the highest Court in Colorado created a presumption that generally permitted a custodial parent to relocate with a Child. In Francis, the custodial parent sought to relocate to attend school. The trial Court held that if the mother enrolled in the school program, she would lose custody of her children. The Colorado Supreme Court reversed and held that the "child's best interests are served by preserving the custodial relationship, by avoiding re-litigating of custody decisions, and by recognizing the close link between the best interests of the custodial parent and the best interest of the child. In a removal dispute, this leads logically to a presumption that the custodial parent's choice to move with the children should generally be allowed." Id. at 784.

At the time that the Colorado Supreme Court decided Francis in 1996 the Court recognized that historically, many states had disfavored relocation as a means of promoting a meaningful relationship between the child and the noncustodial parent and as a means of avoiding disputes over which state has jurisdiction in these types of cases. The Colorado Supreme Court however, recognized that the trend in relocation cases was changing -- in 1996, it was presumed that the custodial parent's decision to relocate with the child was in the best interests of the child. Id. at 783-84. The Francis Court further cited the Supreme Court of New Jersey case as Cooper v. Cooper, 99 N.J. 42 (1984) in recognizing that "the child's interest have become so interwoven with the well-being of the new family unit that ‘the determination of the child's best interests require that the interests of the custodial parent be taken into account." Id. at 784.

In Francis, the Colorado Supreme Court articulated a three part test to be applied in relocation cases as follows: (1) the custodial parent first must present a prima facie showing that there is a sensible reason for the move; (2) if the custodial parent makes a prima facie showing, then a presumption allowing the child to remain with the custodial parent arises and the burden shifts to the noncustodial parent to show that the move is not in the child's best interest; and (3) the noncustodial parent may overcome the presumption by showing that one of the factors in the Colo. Rev. Stat. §14-10-13(2) was met, i.e. that the child would be endangered by the move, or by showing that negative impact of the move outweighs the advantages of the child remaining with primary caregiving. Id. at 785. SeealsoIn re Marriage of Donovan, 36 P.3d 207 (Colo. App. 2001) (Court confirmed the three part test articulated in Francis which it applied to hold that the trial court misapplied this three part test in denying mother's application to relocate with the parties' child from Colorado to Las Vegas, Nevada).

This three part test which existed at the time that Baures was decided was abolished by legislation in Colorado. On September 1, 2001, four months after the Supreme Court of New Jersey decided Baures v. Lewis, the Colorado legislature amended Colo. Rev. Stat. §14-10-129, and said amendments specifically eliminated the three part test set forth in Francis in addressing a relocation application. In the case of In re Marriage of Ciesluk, 113 P.3d 135 (Colo. 2005), the Colorado Supreme Court confirmed that Francis, 919 P.2d 776 (Colo. 1996) was superseded by statute. As a result, the law in Colorado changed from a presumption in favor of relocation to a more neutral standard where there is neither a presumption in favor of or against relocation and the Court considers the issue based on a best interest analysis. The Colorado Supreme Court states "[u]ltimately it is incumbent upon the trial court to consider all of the relevant factors under §14-10-129(2)(c) and to decide what arrangements will serve the child's best interest." Id. at 137.

In Ciesluk, the Colorado Court of Appeals stated that "the legislative history of §14-10-129 indicates that amendments to the statute were proposed because of dissatisfaction with the In re Marriage of Francis, supra, and were intended to overrule Francis." In re Marriage of Ciesluk, 100 P.3d 527, 528 (Colo. App. 2004). The Colorado Court of Appeals in Ciesluk, further reiterated that "[w]e conclude the trial court properly found that §14-10-129, as amended, contains no presumption in favor of the primary residential parent . . ." Id. at 530.

In Ciesluk, the Colorado Court of Appeals found that the trial court's reliance on Dr. Sanford L. Braver's scholarly article entitled Relocation of Children after Divorce and Children's Best Interests: New Evidence and Legal Considerations published in 17 J. Fam. Psychol. No. 2 at 206-19 (2003) was justified. In this case, the trial court informed the litigants that it was aware of Dr. Braver's study which detailed the effects of relocation on the children of divorced parents. The Court further noted that one of the findings in the foregoing study was that "there was no empirical basis on which to justify a legal presumption that a move which would improve the life of a custodial parent would necessarily confer benefits on the child who moves with the parent." In re Marriage of Ciesluk, 100 P.3d at 531. Moreover, the Colorado Supreme Court's decision in Ciesluk affirmed the trial court's reliance on Dr. Braver's study which is contrary to Dr. Wallerstein's social science research which was relied upon by the Supreme Court of New Jersey in Baures v. Lewis.

In relocation cases, the Colorado statute now requires courts to consider nine (9) specifically tailored factors. Pursuant to Colo. Rev. Stat. §14.10-129(2), in adjudicating a relocation application, the Colorado courts will address the relocation application as a request to modify a prior parenting time order, and the following factors will be considered:

  1. The reason why the party wishes to relocate with the child;
  2. The reason why the opposing party is objecting to the proposed relocation;
  3. The history and quality of each party's relationship with the child since any previous parenting time order;
  4. The educational opportunities for the child at the existing location and at the proposed new location;
  5. The presence or absence of extended family at the existing location and at the proposed new location;
  6. The presence or absence of extended family at the existing location and at the proposed new location;
  7. Any advantages of the child remaining with the primary caregiver;
  8. Whether the court will be able to fashion a reasonable parenting time schedule if the change requested is permitted; and
  9. Any other relevant factors bearing on the best interests of the child.

Moreover, the statute also provides for a consideration of whether a party committed an act of domestic violence, whether there was a pattern of domestic violence and if so, whether it occurred before or after the parenting order at issue was entered.

Accordingly, the Supreme Court of New Jersey's reliance on the Colorado Supreme Court's holding in Francis as guidance on the issue of relocation in New Jersey is now misplaced given the change in the laws in Colorado which eliminated the presumption in favor of relocation. Whereas the laws in Colorado were relied upon by the Court in Baures, the change in these laws and shift in the acceptance of social science research can now be used to support a position that Baures v. Lewis should also be reconsider.

California's Presumption In Favor Of Relocation Has Been Limited Based
On Effect Of Relocation On Noncustodial Parent's Relationship With The Child

In deciding Baures, the Supreme Court of New Jersey was particularly interested in the California Supreme Court's decision in In re Marriage of Burgess, 913 P.2d 473 (Cal. 1996), where the Court "abandoned the prior hostile approach taken toward the custodial parent in relocation cases." In Burgess, the California Supreme Court rejected a strict requirement that the custodial parent establish a "necessity" for the move. The California Supreme Court specifically "directed the lower courts to take into account the custodial parent's ‘presumptive right' to move." Baures, 167 N.J. at 109.

The ruling in Burgess was codified by the California legislature in 2003 when it enacted Cal. Fam. Code §7501 which provides, in relevant part, "[I]t is the intent of the Legislature to affirm the decision in In re Marriage of Burgess (1996) 13 Cal.4th 25, and to declare that ruling to be the public policy and law of this State."

In deciding Burgess, the Supreme Court of California relied upon an amicus brief submitted by Dr. Judith S. Wallerstein – the same professional whose data was relied upon by the Supreme Court of New Jersey in Baures. Dr. Wallerstein was thereafter criticized for not submitting a neutral position and for supporting the mother's request to relocate. In opining upon the removal issue, Dr. Wallerstein is said to have "recommend[ed] that courts should focus on whether or not a strong bond developed between the children and the parent from whom they will be separated. She cites ‘research' that suggests that in many cases the bond is weak or nonexistent and that there is no significant loss to the children if the other parent relocates: the basic principle being that no love was lost, because there was no love there in the first place." [25] Dr. Wallerstein's position was questioned on the premises of why would a noncustodial parent incur the time, expense and emotional toll of opposing a relocation application if the noncustodial parent was not bonded with the parties' child?[26] In addition, Dr. Wallerstein also recommended that the Court consider the child's wishes in determining the relocation application and this position was cited by the Court in Burgess. Burgess, 913 P.2d 473 (Cal. 1996).[27]

The Baures' Court viewed the California Supreme Court's decision in Burgess as establishing a trend in favor of relocation. Approximately three years after Baures was decided and seven years after Burgess was decided, the California 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. In In re Marriage of LaMusga, 88 P.3d 81 (Cal. 2004), the California Supreme Court found that the trial court properly denied the mother's request to relocate with the parties' children after weighing all of the factors and placing primary importance on the detrimental effect the move would have had on the children's relationship with their father.

Although the Supreme Court of California sought to clarify the ruling in Burgess, in its decision in LaMusga, the Court placed primary importance on the effect of a proposed move on the relationship between the child and the noncustodial parent which lessened the presumption in favor of relocation. In LaMusga, the strained relationship between the parents gave the Court concern that if the mother relocated, the parties' children's relationship with their father would be "lost." The court noted:

the [trial] court placed ‘primary importance' on the effect the proposed move would have on ‘what is now a tenuous and somewhat detached relationship with the boys and their father' concluding that the proposed move would be ‘extremely detrimental' to the children's welfare because it would disrupt the progress being made by the therapist in promoting this relationship. The superior court found that it was ‘realistic' to be concerned that the proposed move could result in the relationship between the father and the children ‘being lost."

LaMusga, 88 P.3d at 94.[28]

The Court held that even if the custodial parent has a legitimate reason for the proposed relocation of a child and is not acting simply to frustrate the noncustodial parent's contact with the child, the Court can consider that one reason for the move is to lessen the noncustodial parent's contact with the child, and as such, change in custody based on the child's best interest. The Court in LaMusga held if the noncustodial parent can demonstrate that the proposed relocation will cause detriment to the child, a re-evaluation of the existing custody order will be appropriate. In re Marriage of Brown & Yana, 127 P.3d 28 (Cal. 2006).

The California Court applied a stricter standard in the case of In re Marriage of Melville, 18 Cal. Rptr. 3d 685 (Cal. Ct. App. 2004) where the Court transferred custody of the child to the non-relocating parent where evidence showed that the child would not have adequate medical care if the child was relocated to the new location and would not transition well into a new school and new surroundings.

Under California law, if the noncustodial parent can demonstrate an initial showing of detriment to the child upon the relocation, the Court will then examine whether custody should be changed based on the best interest of the child and the following factors will be examined:

  1. The child's interest in stability and continuity in the custodial arrangement;
  2. The distance of the move;
  3. The child's age;
  4. The child's relationship with both parents;
  5. The relationship between the parents, including, but not limited to, their ability to communicate and cooperate effectively and their willingness to put the child's interests above their individual interests;
  6. The child's wishes if the child is mature enough for such an inquiry to be appropriate;
  7. The reasons for the proposed move; and
  8. The extent to which the parents currently share custody.

In re Marriage of Brown & Yana, 127 P.3d 28, 36 (Cal. 2006).

In Brown, the California Supreme Court affirmed the trial court's order permitting a mother to relocate to Nevada with the parties' child without conducting a plenary hearing where father failed to establish a detriment to the child if the relocation occurred.

While the State of California continues to have a presumption in favor of relationship which has been established by case law and affirmed by the state's legislature, the presumption has been diluted by LaMusga and its prodigy since the Supreme Court of New Jersey ruling in Baures v. Lewis.

New York Places Burden Of Proof On Custodial Parent In Relocation Case

At the time that Baures was decided, the Supreme Court of New Jersey also took note of the fact that its sister State of New York has lessened the burden on custodial parents seeking to relocate. In 1996, the New York Court of Appeals had softened the restrictive laws on relocation by replacing the requirement of "exceptional circumstances" with a general "best interests" test in relocation cases. Tropea v. Tropea, 665 N.E.2d 145 (N.Y. 1996). Prior to Tropea, the New York Courts made the concept of relocation very difficult, if not impossible, for the custodial parent. Specifically, the New York Court of Appeals recognized in Weiss v. Weiss, 418 N.E.2d 377, 380 (N.Y. 1981), "the importance of continued regular and frequent visitation between child and the noncustodial parent and stated that ‘absent exceptional circumstances… appropriate provisions for visitation or other access by the noncustodial parent follows almost as matter of course."

Tropea specifically rejected the prior three-tiered exceptional circumstances analysis in relocation cases which had developed through case law and it formulated a new standard based on the child's best interest. The New York Court of Appeals specifically stated: "it serves neither the interests of children nor the ends of justice to view relocation cases through the prisms of presumptions and threshold tests that artificially skew the analysis in favor of one outcome or another. Tropea, 665 N.E.2d at 151.

The factors established by Tropea to be considered in a New York relocation matter are as follows:

  1. Each parent's reasons for seeking or opposing the move;
  2. The quality of the relationships between the child and the custodial and non-custodial parents;
  3. The impact of the move on the quantity and quality of the child's future contact with the non-custodial parent;
  4. The degree to which the custodial parents and child's life may be enhanced economically, emotionally and educationally by the move; and
  5. The feasibility of preserving the relationship between the non-custodial parent and the child through suitable visitation arrangements.

Tropea, 665 N.E.2d at 151.

While Tropea shifted the focus from the desires and needs of the parents to the best interest of the child, over the last nineteen years, the standard in New York for relocation continues to remain a difficult one to overcome for the custodial parent.

Tropea did not address the issue of which parent bears the burden of proof as to establishing the child's best interests in a relocation case. The lower courts in New York, however, have placed this burden on the custodial parent, and as evidences by the case law below, the burden is not easily met by a custodial parent.

In Paul v. Pagnillo, 13 A.D.3d 971 (N.Y. App. Div. 2004), the Court held that the relocating parent bears the burden to prove by preponderance of the evidence that proposed relocation is in the child's best interest. In Paul, the Appellate Court reversed trial court's order granting mother permission to relocate as it held that the mother failed to satisfy her burden of proof. In that case, the mother sought to relocate with the parties' ten year old child to join her new husband who had a found a position in Mississippi. As the trial court found that there was no evidence to demonstrate the mother's new husband's position was permanent, it denied her application to relocate. In affirming the Court's decision, the appellate court specifically noted that the proposed relocation would deprive the child of frequent and regular contact with the father, which the Court deemed a valuable asset in the child's life.

While the Supreme Court of New Jersey interpreted the New York Court of Appeals decision in Tropea as a trend that New York was also liberalizing its laws on relocation, the lower court cases that followed Tropea evidence that the burden to prove that it is in the child's best interest to relocate in New York remains with the custodial parent. The cases that follow Tropea can be cited as a resource to support a position contrary to Baures whereby the standard is a best interest analysis as opposed to a presumption of relocation.

South Dakota Has A Best Interest Standard

In Baures, the Supreme Court of New Jersey also cites the South Dakota case of Fortin v. Fortin, 500 N.W.2d 229 (S.D. 1993) in its opinion in support of the state's presumption in favor of removal.[1] While the presumption of the South Dakota's statute as favoring removal in Fortin has not been overturned, the law in South Dakota is a best interest analysis. SeeBrosnan v. Brosnan, 840 N.W.2d 240 (S.D. 2013).

S.D. Codified Laws §25-5-13 provides that "[a] parent entitled to the custody of a child has the right to change his residence, subject to the power of the circuit court to restraina removal which would prejudice the rights or welfare of the child." The Court will then determine the relocation application based on whether it is in the best interest of the child to relocate out of state. Hogen v. Pifer, 757 N.W.2d 160 (S.D. 2008). In examining the best interests of the child, the Circuit Court may consider the following factors: "fitness, stability, primary caretaker, child's preference, harmful parental misconduct, separating siblings, and substantial change in circumstances." Id. Additionally, the Supreme Court of South Dakota has stated that "[w]e have consistently stated that these factors are to be viewed as guideposts for trial courts, thus, 'a court is not bound to make a specific finding in each category; indeed, certain elements may have no application in some cases, and for other cases there may be additional relevant considerations. In the end, our brightest beacon remains the best interests of the child.'" Beaulieu v. Birdsbill, 815 N.W.2d 569, 572 (S.D. 2012) (quoting Zepeda v. Zepeda, 632 N.W.2d 48, 53 (S.D. 2001)).

Since Fortin, other cases have been distinguished from Fortin and the Supreme Court of South Dakota 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. SeeBerens v. Berens, 689 N.W.2d 207 (S.D. 2004) (Supreme Court of South Dakota affirmed an order transferring custody of the children from mother to father based on children's best interests where court discredited mother's allegations of domestic violence and sexual abuse and where father had certain medical issues and was illiterate and had issues retaining employment, the trial court did not give merit to mother's focus on children's need for access to extended family.)

Fortin was also distinguished by the Supreme Court of South Dakota in Hogen v. Pifer, 757 N.W.2d 160 (S.D. 2008), where the Court affirmed the denial of mother's relocation application where both parties were very involved in the child's life. As such, the trial court denied the relocation application "for the sole reason that the move would disrupt the noncustodial father's visitation and influence over his son." Id. at 164.

While the South Dakota case law relied upon by the Supreme Court of New Jersey in Baures remains good law, the South Dakota cases that followed since Baures, evidence that South Dakota has employed a best interest standard for adjudicating relocation cases. The best interest analysis does not support a presumption of relocation.

Tennessee Has A Two-Prong Test For Determining Relocation

In adjudicating Baures v. Lewis, the Supreme Court of New Jersey also referenced the law in the state of Tennessee citing the case of Taylor v. Taylor, 849 S.W.2d 319 (Tenn. 1993) for creating a "strong presumption" in favor of relocation of the child and the custodial parent. Baures, 167 N.J. at 224.

Tennessee has a two prong standard. First, Tenn. Code Ann. §36-6-108(d)(1) establishes a presumption in favor or relocation unless the noncustodial parent can establish: (a) the relocation does not have a reasonable purpose; (b) the relocation would pose a threat of specific and serious harm to the child that outweighs the threat of harm to the child of a change of custody; or (c) the parent's motive for relocating with the child is vindictive in that it is intended to defeat or deter visitation rights of the noncustodial parent or the parent spending less time with the child. If the noncustodial parent can establish one of the foregoing factors, then the standard shifts to a best interest analysis. Tenn. Code Ann. §36-6-108(e) ("if the court finds (10) or more of the grounds designated in subsection (d) the court shall determine whether or not to permit the relocation of the child based on the best interest of the child.").

Since its 1993 decision in Taylor, the Tennessee Courts seems to have hardened with regard to what is considered to be a reasonable purpose for the relocation. The foregoing statute was enacted in 1996. Moreover, the case law thereafter limited the custodial parent's unfettered right to relocate. In both Mitchell v. Mitchell, 2005 Tenn. App. Lexis 366 (Tenn. Ct. App. June 27, 2005) and Schremp v. Schremp, 2000 Tenn. App. Lexis 791 (Tenn. Ct. App. Dec. 7, 2000), the mother's proposed relocation to be in close proximity to her fiancé whom she planned to marry/husband was not found to be a reasonable purpose for the move. The more recent case law suggest that the term "reasonable purpose" has been interpreted to mean "significant purposes." SeeWebster v. Webster, 2006 Tenn. App. Lexis 685 (Tenn. Ct. App. Oct. 24, 2006).[2]

The Court of Appeals of Tennessee recognized that historically the Tennessee Courts favored relocation and provided the custodial parent with "unfettered authority to move the child away from the non-custodial parent, regardless of the reason or the effect on the child's relationship with the non-custodial parent." SeeWebster v. Webster, 2006 Tenn. App. Lexis 685 (Tenn. Ct. App. Oct. 24, 2006). In Webster, the Court of Appeals of Tennessee specifically recognized that as the "value of involving both parties in child-rearing became more widely recognized, Tennessee courts began to hold that the non-custodial parent could prevent relocation of the child under some circumstances if the non-custodial parent could prove that the move was not in the best interests of the child." Id. at 29.

While the Supreme Court of New Jersey relied upon Taylor v. Taylor, 849 S.W.2d 319 (Tenn. 1993), in deciding Baures v. Lewis, for the concept that Tennessee has a "strong presumption" in favor of relocation, the decisional case law rendered and statute enacted after Taylor evidence that this presumption is no longer "unfettered" and that once the noncustodial parent refutes the presumption favoring relocation, the standard becomes one of a best interest analysis.

Minnesota Places Burden Of Proof On Moving Party

In adjudicating Baures v. Lewis, the Supreme Court of New Jersey also relied upon the Supreme Court of Minnesota's decision in Auge v. Auge, 334 N.W.2d 393 (Minn. 1983) and Sefkow v. Sefkow, 427 N.W.2d 203 (Minn. 1998) to conclude the Minnesota had a presumption in favor of the custodial parent seeking to relocate whereby the noncustodial parent had the burden to show that the relocation would endanger the child or is meant to frustrate the noncustodial parent's relationship with the child.

In 2006, the case of Auge v. Auge, was overruled by statute. In 2006, the legislature eliminated the presumption in favor of relocation established in Auge when it amended Minn. Stat. §518.175(3). The Minnesota statute places the burden of proof on the moving party unless the court finds that the moving party has been the victim of domestic abuse at the hands of the opposing party. Id. at §518.175(3)(c). The statute also provides that courts considering removal motions "shall apply a best interest standard," and provides a non-exclusive list of eight best-interests factors. Id. at. §518.175(3)(b), (c) ("[t]he burden of proof is upon the parent requesting to move the residence of the child to another state, except that if the court finds that the person requesting permission to move has been a victim of domestic abuse by the other parent, the burden of proof is upon the parent opposing the move. The court must consider all of the factors in this subdivision in determining the best interests of the child."). SeealsoClark v. Clark, 2014 Minn. App. Unpub. Lexis 773 (Minn. Ct. App. July 21, 2014) (recognizing that the case of Auge v. Auge, 334 N.W.2d 313 (Minn. 1983), is no longer the standard applied in removal cases in the Minnesota.).

Pursuant to Minn. Stat. §518.175(3)(b), the factors to be considered by the Court in determining the best interest of the child are as follows:

  1. the nature, quality, extent of involvement, and duration of the child's relationship with the person proposing to relocate and with the non-relocating person, siblings, and other significant person's in the child's life;
  2. the age, developmental stage, needs of the child, and the likely impact the relocation will have on the child's physical, educational, and emotional development, taking into consideration special needs of the child;
  3. the feasibility of preserving the relationship between the non-relocating parent and the child through suitable parenting time arrangements, considering the logistics and financial circumstances of the parties;
  4. the child's preference, taking into consideration the age and maturity of the child;
  5. whether there is an established pattern of conduct of the person seeking the relocation either to promote or thwart the relationship of the child and the non-relocating person;
  6. whether the relocation of the child will enhance the general quality of the life for both the custodial parent seeking to relocate and the child including, but not limited to, financial or emotional benefit or educational opportunity;
  7. the reasons of each person for seeking or opposing the relocation; and
  8. the effect on the safety and welfare of the child, or of the parent requesting to move the child's residence, of domestic abuse, as defined in section 518B.01.

Whereas Minnesota was once a state that had a presumption in favor of relocation, that law too has changed to a best interest analysis. The statute is undoubtedly based in part upon the principle that interruption of the parent-child relationship may be seriously detrimental to the child's psychological development -- a principle which should apply with equal or greater force when the child has already been separated from one parent at the time of a dissolution. Seegenerally J. Goldstein, A. Frend & A. Solnit, Before the Best Interests of the Child 8-11 (1979); Mnookin, Child Custody Adjudication: Judicial Functions in the Face of Indeterminacy, 39 Law & Contemp. Probs. 226, 265 (Summer 1975).

Wisconsin Continues To Have A Presumption Favoring Relocation

In Baures v. Lewis, the Supreme Court of New Jersey considered the case of Long v. Long, 381 N.W.2d 350 (Wis. 1986) in support of the belief at that time that courts were easing the burden on custodial parents. In Long, the Supreme Court of Wisconsin recognized that a custodial parent will be permitted to relocate if the custodial parent can establish a good reason for the move. The standard for modification or prohibition of a move or relocation in Wisconsin requires the noncustodial parent to file an application objecting to the proposed relocation. The court will then consider the following factors when adjudicating the relocation issue:

  1. Whether the purpose of the proposed action is reasonable;
  2. The nature and extend of the child's relationship with the other parent and the disruption to that relationship with the proposed action may cause; and
  3. The availability of alternative arrangements to foster and continue the child's relationship with and access to the other parent.

Wisc. Stat. Ann. §767.481(5) (previously §767.327). Thereafter, if the Court does not find in favor of the relocation, it can then review the matter as a change in physical custody (referred to as physical placement of the child) in which case it will then consider the best interests of the child and whether the move/removal will result in a substantial change of circumstance substantially affecting physical placement of the child. Wisc. Stat. Ann. §767.481(1).

The State of Wisconsin continues to be very liberal in its presumption of relocation. There were two dissenting opinions in Long v. Long, 381 N.W.2d 350 (Wis. 1986) both which recognized the difficult on the noncustodial parent in relocation cases and emphasized that a best interest test was more appropriate than the liberal presumption creating by the statute and affirmed by the majority opinion. 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 Wisconsin recognizing the presumption in favor of relocation.

The Relocation Laws Vary From State To State

A review of the laws throughout the country reflect the following consistencies/trends among other jurisdictions:

Burden of Proof

  • The following thirty-one states place the burden of proof on the parent seeking to relocate with the child, but in some of these states, the burden can be easily met: Alabama, Arizona, Connecticut, Delaware, Florida, Hawaii, Idaho, Illinois, Indiana, Kentucky, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, Nevada, New Hampshire, New Jersey, New York, North Dakota, Pennsylvania, Ohio, Oklahoma, Oregon, South Carolina, Texas, Utah, Virginia, and West Virginia.
  • The following seven states place the burden of proof on the non-relocating party to establish that relocation should not occur: Alaska, Arkansas, California, North Carolina, Tennessee, Washington, and Wisconsin.
  • The following twelve jurisdictions do not address any burden of proof: Colorado, District of Columbia, Georgia, Iowa, Kansas, Maryland, Mississippi, Montana, New Mexico, Rhode Island, South Dakota, Wyoming, and Vermont.

Presumptions:

  • The following nine states have a presumption in favor of relocation (in addition to states detailed below): Alaska, Arkansas, California, New Jersey, South Dakota, Vermont, Washington, West Virginia, and Wisconsin.
  • The following three states have a rebuttable presumption to establish that the relocation is in the child's best interest and if that burden is met, then the burden of proof shifts to the noncustodial parent to show that the relocation is not in the child's best interest: Indiana, New Hampshire, and Oklahoma. The rebuttable presumption means the party seeking to relocate has the initial burden of proof to show that relocation is in the child's best interest and if that burden is met, then the burden of proof shifts to the noncustodial parent to show that the relocation would not be in the child's best interest;
  • Alabama has a presumption against relocation.
  • The following ten states specifically state that they are neither in favor of nor against a presumption: Colorado, Florida, Georgia, Idaho, Kansas, Maine, Montana, Rhode Island, South Carolina, and Wyoming.
  • The following twenty-six states do not specifically specify a presumption for or against relocation: Arizona, Connecticut, Delaware, Hawaii, Illinois, Indiana, Iowa, Kentucky, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Mexico, New York, North Carolina, North Dakota, Ohio, Oregon, Pennsylvania, Texas, Utah and Virginia.
  • In Tennessee there is no presumption when parents have shared custody and there is a presumption favoring relocation where the custodial parent seeks to relocate.
  • In the District of Columbia there is a rebuttable presumption in favor of joint physical custody.

Best Interest Analysis:

  • The following forty-two jurisdictions have a best interest analysis as part of the relocation consideration: Alabama (rebuttable presumption), Alaska (case law), Arizona (statutory), Arkansas (case law), California (8 case law factors), Colorado (statutory and case law), Connecticut (16 statutory factors), Delaware (8 statutory factors and case law), District of Columbia (17 statutory factors) Florida (statutory), Georgia (case law), Hawaii (case law), Idaho (case law), Illinois (statutory and 5 case law factors), Indiana (statutory), Kansas (statutory and case law), Kentucky (case law which refers to custody statute), Maine (case law), Maryland (case law), Massachusetts (3 case law factors), Minnesota (statutory), Missouri (statutory), Montana (statutory and case law), Nebraska (case law), Nevada (case law), New Hampshire (statute), New Mexico (statutory and case law), New York (5 case law factors), North Carolina (statutory and 5 case law factors), North Dakota (4 case law factors that interprets statute), Ohio (case law), Oklahoma (8 statutory factors), Oregon (statutory and 6 case law factors), Rhode Island (8 case law factors), South Carolina (case law), South Dakota (pursuant to case law that interprets statute), Tennessee (statutory and case law), Texas (case law), Utah (statutory), Virginia (10 statutory best interest factors and case law), West Virginia (case law), and Wyoming (viewed as change in custody which is viewed under best interest analysis). In New Jersey, the best interest of the child is not considered until the relocating parent meets his or her initial burden of proof and then it is only considered to the extent the non-relocating parent can establish that the relocation is inimical to the best interest of the child.
  • Of the thirty-two states that have a statute, the following states mention best interest of the child as a specific consideration in relocation cases: Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Michigan, Minnesota, Missouri, Montana, Nevada, New Hampshire, Ohio, Oklahoma, Pennsylvania, Tennessee, Utah, Washington, West Virginia, Wisconsin and Wyoming. New Mexico's statute requires a best interest analysis in a review of any custody determination.

Statutes:

  • The following thirty-seven states have statutes which address relocation: Alabama (17 factors to consider), Arizona (8 factors), California (no factors), Colorado (9 factors), Connecticut (5 factors), Delaware (no factors), Florida (11 factors), Idaho (7 factors), Illinois (10 factors), Indiana (6 factors), Iowa (no factors), Kansas (3 factors), Louisiana (12 factors), Maine (no factors), Maryland (no statutory factors, 10 case law factors), Massachusetts (no factors), Michigan (5 factors), Minnesota (8 factors), Missouri (no factors), Montana (13 factors), Nevada (no factors, 11 case law factors), New Hampshire (12 best interest factors), New Jersey (no factors), North Carolina (no factors), North Dakota (no factors in statute), Ohio (no factors), Oklahoma (8 factors), Oregon (6 best interest factors), Pennsylvania (10 factors), South Dakota (no factors), Tennessee (3 factors), Utah (no factors), Virginia (no factors), Washington (11 factors), West Virginia (no factors), Wisconsin (no factors) and Wyoming (no factors in statute).
  • The following fourteen jurisdictions do not have a statute specifically addressing the issue of relocation: Alaska, Arkansas, District of Columbia, Georgia, Hawaii, Kentucky, Mississippi, Nebraska, New Mexico, New York, Rhode Island, South Carolina, Texas, and Vermont.
  • In reviewing the case law, the following eight states consider the effect that the move will have on the custodial schedule in either adjudicating the application or modifying the custody/parenting schedule: Alabama, Arkansas, Iowa, Mississippi, Montana, Nevada, New York, and Texas. In Texas, the request to relocate is considered a custody modification and therefore a change in circumstance be established.

Geographical Definitions:

  • The following eleven states list geographic limitations which defines relocation – meaning that if a custodial parent chooses to relocate within a certain many miles from the noncustodial parent's residence or the child's residence at the time of the divorce, then it is a relocation case: Alabama (60 miles or out of state), Florida (50 miles), Iowa (150 miles from child's residence at time of divorce), Louisiana (75 miles or out of state), Maine (60 miles), Michigan (100 miles), North Dakota (50 miles from noncustodial parent), Oklahoma (75 miles), Oregon (60 miles from other parent), Tennessee (50 miles from other parent or out of state), and Utah (150 miles or more).

Notice Provisions:

  • The following sixteen statesrequire a specific number of days' notice to be provided before the relocation: Arizona (60 days), California (45 days), Indiana (no days specified), Kansas (30 days), Maine (30 days), Maryland (90 days), Missouri (60 days), Montana (30 day notice period), New Hampshire (60 days), Oklahoma (60 days), Pennsylvania (60 days), Tennessee (60 days), Utah (60 days), Virginia (30 days), Washington (60 days) and West Virginia (60 days).
  • The following ten states provide a certain number of days in which the noncustodial parent has to object to the relocation; Alabama (30 days), Arizona (30 days), Florida (no days), Indiana (60 days), Louisiana (30 days), Missouri (30 days), Oklahoma (30 days), Pennsylvania (30 days), Tennessee (30 days) and Washington (30 days).

Factors Not To Be Considered:

  • The following five states have factors a court should not take into account in determining the relocation: Illinois, Louisiana, New Hampshire, Oklahoma and Washington. Louisiana and New Hampshire specifically state that a court must not consider whether the parent seeking to relocate may relocate without the child if relocation is denied or whether the parent opposing relocation may also relocate if relocation is permitted. In Oklahoma and Washington, a court must not give weight to a temporary relocation as a factor if there wasa temporary order permitting relocation before the issue was finally decided. Illinois' statute specifically states that a court cannot consider availability of electronic communications as a factor in support of removal.

Domestic Violence

  • The following fifteen jurisdictions give consideration to domestic violence by making it easier for victims of domestic violence to relocate: Alabama, Colorado, District of Columbia, Florida, Idaho, Louisiana, Maine, Michigan, Minnesota, Montana, Nebraska, New Hampshire, Pennsylvania, Virginia and Washington. One of the factors in determining best interest in Pennsylvania is whether there is continued risk of abuse to child or abused party. In Washington, the statute has a carve out for the notice requirements where the relocating party has concern for their safety or party is entering a domestic violence shelter. Minnesota's statute provides that the burden of proof will shift to the non-relocating parent if the parent seeking to relocate was a victim of domestic violence.

A Summary Of The Laws On Relocation In The United States

The law in all fifty states, plus the District of Columbia continues to be different. Beginning in 1998, the American Academy of Matrimonial Lawyers proposed a Model Relocation Act.[3] Although the model act was useful to some states, it has not been accepted by other states. The Uniform Law Commission also attempted to draft a uniform relocation act referred to as the Relocation of Children Act which included many factors to be considered in adjudicating relocation applications and did not create a presumption in favor or against relocation. The Uniform Law Commission gave up its quest to obtain uniformity as it recognized that no matter how detailed the act was, it would not be accepted by many states. The American Bar Association also sought to create a uniform act but its efforts to create uniformity also were not successful.

A review of the statutes and case law in each jurisdiction evidence that the District of Columbia and the states throughout the United States are not yet ready for uniformity. Whereas some states are very much in favor of not restricting the custodial parent's residence after the parties divorce and continue to believe that what is good for the custodial parent is good for the child, other states have a more restrictive view of relocation recognizing that the child's relationship with the noncustodial parent is equally important to the child's success.

The applicable statute, and case law, if any, in all States throughout the United States, plus the District of Columbia on relocation is as follows:

Alabama:

Ala. Code §30-3-160 to §30-3-169.10. Absent a finding of domestic violence, Alabama has a presumption against relocation. The party seeking to relocate must provide notice to the noncustodial parent who then has 30 days to object. If there is an objection, the initial burden to prove grounds for the relocation rests with custodial parent and then once initial burden is met, the burden of proof then shifts to noncustodial party. The statute lists seventeen factors to be considered by the Court in determining a relocation application as follows:

  1. The nature, quality, extent of involvement, and duration of the child's relationship with the person proposing to relocate with the child and with the non-relocating person, siblings, and other significant persons or institutions in the child's life;
  2. The age, developmental stage, needs of the child, and the likely impact the change of principal residence of a child will have on the child's physical, educational, and emotional development, taking into consideration any special needs of the child;
  3. The increase in travel time for the child created by the change in principal residence of the child or a person entitled to custody of or visitation with the child;
  4. The availability and cost of alternate means of communication between the child and the non-relocating party;
  5. The feasibility of preserving the relationship between the non-relocating person and the child through suitable visitation arrangements, considering the logistics and financial circumstances of the parties;
  6. The preference of the child, taking into consideration the age and maturity of the child;
  7. The degree to which a change or proposed change of the principal residence of the child will result in uprooting the child as compared to the degree to which a modification of the custody of the child will result in uprooting the child;
  8. The extent to which custody and visitation rights have been allowed and exercised;
  9. Whether there is an established pattern of conduct of the person seeking to change the principal residence of a child, either to promote or thwart the relationship of the child and the non-relocating person;
  10. Whether the person seeking to change the principal residence of a child, once out of the jurisdiction, is likely to comply with any new visitation arrangement and the disposition of that person to foster a joint parenting arrangement with the non-relocating party;
  11. Whether the relocation of the child will enhance the general quality of life for both the custodial party seeking the change of principal residence of the child and the child, including, but not limited to, financial or emotional benefit or educational opportunities;
  12. Whether or not a support system is available in the area of the proposed new residence of the child, especially in the event of an emergency or disability to the person having custody of the child;
  13. Whether or not the proposed new residence of a child is to a foreign country whose public policy does not normally enforce the visitation rights of non-custodial parents, which does not have an adequately functioning legal system, or which otherwise presents a substantial risk of specific and serious harm to the child.
  14. The stability of the family unit of the persons entitled to custody of and visitation with a child;
  15. The reasons of each person for seeking or opposing a change of principal residence of a child;
  16. Evidence relating to a history of domestic violence or child abuse; and,
  17. Any other factor that in the opinion of the court is material to the general issue or otherwise provided by law.

Relocation is defined as a more 60 miles or more from the residence of the noncustodial parent and to move out of state.

[1] In Fortin, the Supreme Court in South Dakota noted that under S. D. Codified Laws §25-5-13, a custodial parent had the right to change the residency of the child unless such removal would be adverse to the child. The Court found that the evidence had shown that: (1) in order to make the transition smooth for the child the mother would not work outside the home for a year; (2) she had no desire to frustrate or defeat the father's visitation; (3) since the divorce she had made sure that the father had very liberal visitation with the child; (4) she offered to share the transportation costs; and (5) the father had consented to give her sole custody and did not seek custody even after becoming apprised of the mother's intent to take the child out of state. In concluding that the best interests of the child prevailed over the father's privilege of visitation, the court granted the mother's application seeking to relocate with the parties' child.

[2] In Clark v. Clark, 2003 Tenn. App. Lexis 926 (Tenn. Ct. App. Dec. 30, 2003), the appellate division affirmed the trial court's order permitting mother to relocate to be in close proximity with her fiancé who was long settled in Virginia where the mother evidenced an ability to think clearly about her plan and prepare for its consequences, and in Webster v. Webster, 2006 Tenn. App. Lexis 685 (Tenn. Ct. App. 2006), the Court of Appeals reversed the trial court's decision to relocate with the parties' children to Canada to marry a Canadian citizen was deemed to be a reasonable purpose where the mother's further husband had strong ties to the new intended location.

[3] Model Relocation Act: An Act Relating to the Relocation of the Principal Residence of a Child S404 emt. (Am. Acad. Matrim. Law., Proposed Draft 1998). The text of the Act is available at http://www.aaml.org/libary/publications/model-relocatoin-act-0.

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Alaska:

No statute on child relocation exists in Alaska. There is a general custody statute which regulates the judgments for custody: Alaska Stat. §24.24.150(c). In Alaska, the parent seeking to relocate must show a legitimate reason for the proposed move. The Court will consider the best interest factors enumerated in the aforementioned statute. Alaska has a presumption in favor of relocation. Moeller-Prokosch v. Prokosch, 27 P.3d 314 (Alaska 2001). The nonrelocating parent bears the burden of proof. Chesser-Witmer v. Chesser, 117 P.3d 711 (Alaska 2005). If one party seeks to relocate, the Court views the relocation as a change of circumstances as a matter of law.

Arizona:

Ariz. Rev. Stat. §25-408. The statute requires the custodial parent to provide 60 days' notice before he or she plans to relocate with the child. If the noncustodial parent objects he or she can petition the court within 30 days after receiving the notice. The Court will then determine the relocation based on the child's best interest. The burden of proving what is in the child's best interest is on the parent who is seeking to relocate. The statute specifically provides that the court shall make appropriate arrangements to ensure the continuation of a meaningful relationship between the child and both parents. The statute specifically sets forth eight statutory factors for the Court to consider in adjudicating the relocation application. The Court will determine the child's best interests based upon all of the following factors:

  1. The factors prescribed under section 25-403;
  2. Whether the relocation is being made or opposed in good faith and not to interfere with or to frustrate the relationship between the child and the other parent or the other parent's right of access to the child;
  3. The prospective advantage of the move for improving the general quality of life for the custodial parent or for the child;
  4. The likelihood that the parent with whom the child will reside after the relocation will comply with parenting time orders;
  5. Whether the relocation will allow a realistic opportunity for parenting time with each parent;
  6. The extent to which moving or not moving will affect the emotional, physical or developmental needs of the child;
  7. The motives of the parents and the validity of the reasons given for moving or opposing the move including the extent to which either parent may intend to gain a financial advantage regarding continuing child support obligations; and,
  8. The potential effect of relocation on the child's stability.

Arkansas:

No statute on child relocation exists in Arkansas, yet there is a statute on International Child Abduction: Ark. Code §9-13-401 to §9-13-407. Arkansas has a presumption in favor of relocation for the custodial parent and the noncustodial parent has the burden to rebut the presumption. The court will consider the following five factors in determining relocation which focuses on the best interest of the child:

  1. The reason for the relocation;
  2. The educational, health, and leisure opportunities available in the location in which the custodial parent and children will relocate;
  3. Visitation and communication schedule for the noncustodial parent;
  4. The effect of the move on the extended family relationships in the location in which the custodial parent and children will relocate, as well as Arkansas; and,
  5. Preference of the child, including the age, maturity, and the reasons given by the child as to his or her preference.

SeeHollandsworth v. Knysewski, 109 S.W.3d 653 (Ark. 2003).

California:

Cal. Fam. Code § 3024 & §7501. California favors relocation but detrimental effect of relocation on noncustodial parents' relationship with child can be considered. SeeIn re Marriage of Burgess, 913 P.2d 473 (Cal. 1996) and In Re Marriage of LaMusga, 88 P.3d 81 (Cal. 2004).

Colorado:

Colo. Rev. Stat. §14-10-124 & §14-10-129. There is neither a presumption in favor of or against relocation. Colorado eliminated the presumption in favor of the custodial parent's relocation and replaced it with a best interest test to be considered in light of the statutory factors. In addition to the court taking into account whether or not a party has committed, engaged in a pattern of or has a history of domestic violence, the court will consider the following statutory factors:

  1. The reasons why the party wishes to relocate with the child;
  2. The reasons why the opposing party is objecting to the proposed relocation;
  3. The history and quality of each party's relationship with the child since any previous parenting time order;
  4. The educational opportunities for the child at the existing location and at the proposed new location;
  5. The presence or absence of extended family at the existing location and at the proposed new location;
  6. Any advantages of the child remaining with the primary caregiver;
  7. The anticipated impact of the move on the child;
  8. Whether the court will be able to fashion a reasonable parenting time schedule if the change requested is permitted; and
  9. Any other relevant factors bearing on the best interests of the child.

Additionally, the Court takes into consideration whether the child's present environment endangers the child's physical health or significantly impairs the child's emotional development. SeeIn re the Marriage of Ciesluk, 113 P.3d 135 (Colo. 2005).

Connecticut:

Conn. Gen. Stat. Ann. §46b-56d. In Connecticut, the parent seeking to relocate bears the burden of proof to show by preponderance of evidence that the relocation is for a legitimate purpose, the proposed location is reasonable in light of such purpose and that the relocation is in the best interest of the child. There are 16 best interest factors for the court to consider which are listed in Conn. Gen. Stat. Ann. §46b-56. Additionally, under Conn. Gen. Stat. Ann. §46b-56d, the court takes into consideration the following factors after the parent seeking relocation meets the burden of proof by preponderance of evidence:

  1. Each parent's reasons for seeking or opposing the relocation;
  2. The quality of the relationships between the child and each parent;
  3. The impact of the relocation on the quantity and the quality of the child's future contact with the nonrelocating parent;
  4. The degree to which the relocating parent's and the child's life may be enhanced economically, emotionally and educationally by the relocation; and,
  5. The feasibility of preserving the relationship between the nonrelocating parent and the child through suitable visitation arrangements.

Delaware:

Del. Code Ann. Tit. 13, §722 and §729. In Delaware, the parent seeking to relocate bears the burden of proof to establish that an order concerning visitation should be modified based on the best interests of child. If an application to relocate is made within two years of divorce, there is a heightened burden of proof whereby custodial parent must show that absent move will endanger child's health or impair his or her emotional development.

District of Columbia:

No statute on child relocation exists in the District of Columbia. Nevertheless, when dealing with the relocation of a child, the court will first apply the seventeen statutory best interest factors, prior to taking into consideration the ten removal factors as set forth in case law. Estopina v. O'Brien, 68 A.3d 790 (D.C. 2013). In the District of Columbia there is a rebuttable presumption in favor of joint physical custody.

First, the following seventeen best interest factors are taken into consideration, in accordance with D.C. Code §16-914(a)(3):

  1. The wishes of the child as to his or her custodian, where practicable;
  2. The wishes of the child's parent or parents as to the child's custody;
  3. The interaction and interrelationship of the child with his or her parent or parents, his or her siblings, and any other person who may emotionally or psychologically affect the child's best interest;
  4. The child's adjustment to his or her home, school, and community;
  5. The mental and physical health of all individuals involved;
  6. Evidence of an intrafamily offense;
  7. The capacity of the parents to communicate and reach shared decisions affecting the child's welfare;
  8. The willingness of the parents to share custody;
  9. The prior involvement of each parent in the child's life;
  10. The potential disruption of the child's social and school life;
  11. The geographic proximity of the parental homes as this relates to the practical considerations of the child's residential schedule;
  12. The demands of parental employment;
  13. The age and number of children;
  14. The sincerity of each parent's request;
  15. The parent's ability to financially support a joint custody arrangement;
  16. The impact on Temporary Assistance for Needy Families, or Program on Work, Employment, and Responsibilities, and medical assistance; and,
  17. The benefit to the parents.

Then, the Court will consider the following ten relocation factors as established in Estopina v. O'Brien, 68 A.3d 790, 794 (D.C. 2013):

  1. The strength of the relationship of the child with each parent;
  2. The individual resources, temperament, and special development needs of the child;
  3. The psychological stability of the relocating parent and the parenting effectiveness of both parents;
  4. The success of the current custody arrangement and the effect the proposed relocation will have on its stability and continuity;
  5. The advantages and disadvantages of the proposed relocation, including the potential disruption of the child's social and school life and a comparison of the educational, health, and extracurricular opportunities the child would have in each location;
  6. Any benefits to the child likely to be derived from the parents' improved circumstances;
  7. The feasibility of an alternative visitation and access schedule, including the geographic proximity of and travel time between the parental homes as this relates to the practical considerations of the child's residential schedule;
  8. The motivations of the parents in proposing and opposing relocation;
  9. The effect the move will have on the child's relationship with the noncustodial parent, considering the extent to which visitation rights have been allowed and exercised, the level of support the custodial parent has shown for the continuation and growth of the child's relationship with the non-custodial parent, and whether there is any established pattern of promoting or thwarting that relationship; and,
  10. The extent of any conflict between the parents and the recentness of the marital separation.

Florida:

Fla. Stat. Ann. §61.13001. In Florida, the parent seeking to relocate has to file the application seeking permission absent consent of the other parent. If there is no timely objection to the application, it will be granted. There is no presumption in favor or against relocation. Relocation is defined as 50 miles from the custodial parent's residence. The parent seeking to relocate has the burden of proof to establish by preponderance of the evidence that the relocation is in the child's best interest. The court will adjudicate the application based on eleven statutory factors, as follows:

  1. The nature, quality, extent of involvement, and duration of the child's relationship with the parent or other person proposing to relocate with the child and with the nonrelocating parent, other persons, siblings, half-siblings, and other significant persons in the child's life;
  2. The age and developmental stage of the child, the needs of the child, and the likely impact the relocation will have on the child's physical, educational, and emotional development, taking into consideration any special needs of the child;
  3. The feasibility of preserving the relationship between the nonrelocating parent or other person and the child through substitute arrangements that take into consideration the logistics of contact, access, and time-sharing, as well as the financial circumstances of the parties; whether those factors are sufficient to foster a continuing meaningful relationship between the child and the nonrelocating parent or other person; and the likelihood of compliance with the substitute arrangements by the relocating parent or other person once he or she is out of the jurisdiction of the court;
  4. The child's preference, taking into consideration the age and maturity of the child;
  5. Whether the relocation will enhance the general quality of life for both the parent or other person seeking the relocation and the child, including, but not limited to, financial or emotional benefits or educational opportunities;
  6. The reasons each parent or other person is seeking or opposing the relocation;
  7. The current employment and economic circumstances of each parent or other person and whether the proposed relocation is necessary to improve the economic circumstances of the parent or other person seeking relocation of the child;
  8. That the relocation is sought in good faith and the extent to which the objecting parent has fulfilled his or her financial obligations to the parent or other person seeking relocation, including child support, spousal support, and marital property and marital debt obligations;
  9. The career and other opportunities available to the objecting parent or other person if the relocation occurs.
  10. A history of substance abuse or domestic violence as defined in s. 741.28 or which meets the criteria of s. 39.806(1)(d) by either parent, including a consideration of the severity of such conduct and the failure or success of any attempts at rehabilitation.
  11. Any other factor affecting the best interest of the child or as set forth in s. 61.13.

Georgia:

Georgia's general statute on custody is Ga. Code Ann. §19-9-3. It does not specifically address relocation. The focus in a relocation case is on the best interest of the child. There is no bright line rules. There is no presumption in favor of relocation. Bodne v. Bodne, 588 S.E.2d 728 (Ga. 2003).

Hawaii:

There is no statute on child relocation in Hawaii. The parent seeking to relocate with the child has the burden to prove that the relocation is the best interest of the child. Maeda v. Maeda, 794 P.2d 268 (Haw. Ct. App. 1990). The courts have not specified specific factors but consider the quality of life factors, including, quality of schools, availability of employment and incidence of crime. Fisher v. Fisher, 137 P.3d 355 (Haw. 2006).

Idaho:

Idaho Code Ann. §32-717 (adopted AAML model statute). The parent seeking to relocate has the burden to prove that the relocation is in the best interest of the child if the move will interfere with existing parenting time arrangements. Bartosz v. Jones, 197 P.3d 310 (Idaho 2008). This is not a presumption against relocation but rather, the Courts place the burden on the custodial parent to prove. The statute lists seven factors for a Court to consider in its analysis as follows:

  1. The wishes of the child's parent or parents as to his or her custody;
  2. The wishes of the child as to his or her custodian;
  3. The interaction and interrelationship of the child with his or her parent or parents, and his or her siblings;
  4. The child's adjustment to his or her home, school, and community;
  5. The character and circumstances of all individuals involved;
  6. The need to promote continuity and stability in the life of the child; and
  7. Domestic violence, whether or not in the presence of the child.

Illinois:

750 Ill. Comp. Stat. Ann. 5/609. In Illinois, the parent seeking to relocate has the burden to prove that the relocation is in the child's best interest. SeeIn re Marriage of Main, 838 N.E.2d 988 (Ill. App. Ct. 2005); and In re Marriage of Johnson, 815 N.E.2d 1283 (Ill. App. Ct. 2004). The factors to consider in determining best interest are as follows:

  1. Whether the proposed move will enhance the quality of life for both the custodial parent and the child;
  2. The custodial parent's motives in seeking the removal and whether the proposed move is merely a ruse intended to defeat or frustrate visitation;
  3. The non-custodial parent's motives in resisting the removal;
  4. The proposed move's likely effect on the non-custodial parent's visitation rights; and
  5. Whether a realistic and reasonable visitation schedule for the non-custodial parent can be worked out.

In re Marriage of Collingbourne, 791 N.E.2d 532 (Ill. 2003).

The statute specifically states that a Court cannot use the availability of electronic communications as a factor in support of a removal by a child by the custodial parent from Illinois. 750 Ill. Comp. Stat. Ann. §5/602 details the factors to be considered in determining the best interest as follows:

  1. The wishes of the child's parent or parents as to his custody;
  2. The wishes of the child as to his custodian;
  3. The interaction and interrelationship of the child with his parent or parents, his siblings and any other person who may significantly affect the child's best interest;
  4. The child's adjustment to his home, school and community;
  5. The mental and physical health of all individuals involved;
  6. The physical violence or threat of physical violence by the child's potential custodian, whether directed against the child or directed against another person;
  7. The occurrence of ongoing or repeated abuse as defined in Section 103 of the Illinois Domestic Violence Act of 1986 [750 ILCS 60/103], whether directed against the child or directed against another person;
  8. The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child;
  9. Whether one of the parents is a sex offender; and
  10. The terms of a parent's military family-care plan that a parent must complete before deployment if a parent is a member of the United States Armed Forces who is being deployed.

Indiana:

Ind. Code Ann. §31-17-2.2-1 to §31-17-2.2-6. In Indiana, the parent seeking to relocate bears the initial burden to prove proposed relocation is made in good faith and for a legitimate reason. If that burden is met, non-relocating parent bears burden to prove that relocation is not in child's best interest. The statute requires that the parent seeking to relocate must file notice with the court and copy non-relocating parent. The non-relocating parent then has 60 days to file a motion seeking to prevent relocation. The Court will examine the application based on the following factors:

  1. The distance involved in the proposed change of residence;
  2. The hardship and expense involved for the noncustodial individual to exercise parenting time or grandparent visitation;
  3. The feasibility of preserving the relationship between the non-relocating individual and the child through suitable parenting time and grandparent visitation arrangements including consideration of financial circumstances;
  4. Whether there is an established pattern of conduct by the relocating individual, including actions by the relocating individual to either promote or thwart a non-relocating individual's contact with the child;
  5. The reason provided by the relocating parent for the move and the non-relocating parent against the move; and,
  6. Other factors affecting the best interest of the child.

Iowa:

Iowa Code §598.21D. The statute views the relocation request as whether a substantial change in circumstances occurred whereby the Court may modify the custody order in existence at the time to preserve the relationship between the noncustodial parent and the child. The statute defines relocation as 150 miles or more from the residence of the minor child at the time that custody was awarded.

Kansas:

Kan. Stat. Ann. §23-3222. The statute requires that the parent seeking to relocate with the child must provide 30 days' notice to the other party. The statute further defines relocation as removal for a period of 90 days or more. A change in residency is considered a material change in circumstances which justifies a modification of custody. In adjudicating the application, the court will consider whether the effect of the move is in the best interest of the child, the effect of the move on any party having rights under the article, and the increased cost of the move that will be incurred for any party to exercise parenting time. There is no presumption in favor or against relocation. In re Marriage of Bradley, 899 P.2d 471 (Kan. 1995).

Kentucky:

No statute on child relocation exists in Kentucky. There is a statute which regulates the judgments for custody, and specifically delineates the factors to consider in determining the child's best interest: Ky. Rev. Stat. Ann. §25.403.270. The leading case in Kentucky, Pennington v. Marcum, 266 S.W.3d 759 (Ky. 2008), differentiated pre-divorce from post-divorce relocation cases. The parent seeking to relocate bears the burden of proof. There are six factors that a court will consider, including best interest factors established in the state's case law in determining custody cases. Fowler v. Sowers, 151 S.W. 3d 357 (Ky. Ct. App. 2004).

  1. Whether the custodian agrees to the modification;
  2. Whether the child has been integrated into the family of the petitioner with consent of the custodian;
  3. The factors set forth in KRS 403.270(2) to determine the best interests of the child;
  4. Whether the child's present environment endangers seriously his physical, mental, moral, or emotional health;
  5. Whether the harm likely to be caused by a change of environment is outweighed by its advantages to him; and,
  6. Whether the custodian has placed the child with a de facto custodian.

Louisiana:

La. Rev. Stat. Ann. §9:355.1 to 9:355.17. Relocation is defined as a move of 75 miles from the domicile of the noncustodial parent or out of state. Relocation laws do not apply if there is an order of protection. A party intending to relocate must provide notice to the other party and the other party has 30 days to object. The custodial parent then has the burden of proof to establish that the relocation is made in good faith and is in the best interest of the child. Pursuant to La. Rev. Stat. Ann. §9:355.14, the court will then determine whether the relocation is in the best interest of the child based on the following twelve statutory factors:

  1. The nature, quality, extent of involvement, and duration of the relationship of the child with the person proposing relocation and with the non-relocating person, siblings, and other significant persons in the child's life;
  2. The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child's physical, educational, and emotional development;
  3. The feasibility of preserving a good relationship between the non-relocating person and the child through suitable physical custody or visitation arrangements, considering the logistics and financial circumstances of the parties;
  4. The child's views about the proposed relocation, taking into consideration the age and maturity of the child;
  5. Whether there is an established pattern of conduct by either the person seeking or the person opposing the relocation, either to promote or thwart the relationship of the child and the other party;
  6. How the relocation of the child will affect the general quality of life for the child, including but not limited to financial or emotional benefit and educational opportunity;
  7. The reasons of each person for seeking or opposing the relocation;
  8. The current employment and economic circumstances of each person and how the proposed relocation may affect the circumstances of the child;
  9. The extent to which the objecting person has fulfilled his financial obligations to the person seeking relocation, including child support, spousal support, and community property, and alimentary obligations;
  10. The feasibility of a relocation by the objecting person;
  11. Any history of substance abuse, harassment, or violence by either the person seeking or the person opposing relocation, including a consideration of the severity of the conduct and the failure or success of any attempts at rehabilitation; and,
  12. Any other factors affecting the best interest of the child.

Maine:

Me. Rev. Stat. Ann. tit.19A, §1653(14) & §1657. In Maine, in order to relocate, the final parental order must be modified by showing a substantial change in circumstance and that the change would be in the child's best interest. The parent seeking to relocate bears burden to prove that custody award should be modified. A finding of domestic violence after the primary residence of the child was established will be deemed a substantial change. Relocation is defined by statute as 60 miles or more from the parent that is not relocating. The parent seeking to relocate must give 30 days' notice to the other parent. There is no presumption in favor of relocation. Rowland v. Kingman, 629 A.2d 613 (Me. 1993).

Maryland:

Md. Code Ann., Family Law §9-106. In Maryland, both parties have the burden to show best interest of the child on a relocation application. Braun v. Headley, 750 A.2d 624 (Md. Ct. Spec. App. 2000), cert. denied, 531 U.S. 1191 (2001). The case law established the following ten factors for a Court to consider in determining a relocation application:

  1. Fitness of parents;
  2. Character and reputation of parties;
  3. Desire of the nature parents and agreements between the parties;
  4. Potentiality of maintaining natural family relations;
  5. Preference of the child;
  6. Material opportunities affecting the future life of the child;
  7. Age, health, and sex of the child;
  8. Residences of parents and opportunity for visitation;
  9. Length of separation from natural parents; and,
  10. Prior voluntary abandonment or surrender.

The statute requires the parent seeking to relocate to give 90 days' notice to the other parent.

Massachusetts:

Mass. Gen. Laws Ann. ch. 208, §30. The parent seeking to relocate bears the initial burden to demonstrate that there is a real advantage/good and sincere reason for the proposed relocation. If the burden is met then a best interests of the child standard applies. Rosenthal v. Maney, 745 N.E.2d 350 (Mass. App. Ct. 2001). The three factors that the Courts consider are:

  1. the effect of relocation in improving child's quality of life;
  2. effect of relocation on child's association with noncustodial parent; and,
  3. effect of relocation on child's emotional, physical or developmental needs.

Michigan:

Mich. Comp. Laws Ann. §722.31. In Michigan, the parent seeking to relocate bears the burden of proof. The statute defines relocation as 100 miles from child's legal residence at time of the commencement of the action in which the order is issued. In adjudicating an application for relocation, the Court will consider the following factors:

  1. Whether the legal residence change has the capacity to improve the quality of life for both the child and the relocating parent;
  2. The degree to which each parent has complied with and utilized his or her time under a court order governing parenting time with the child and whether the parent's plan to change the child's legal residence is inspired by that parent's desire to defeat or frustrate the parenting time schedule;
  3. The degree to which the Court is satisfied that if the court permits the legal residence change, it is possible to order a modification of the parenting time schedule and other arrangements governing the child's schedule in a manner that can provide an adequate basis for preserving and fostering the parental relationship between the child and each parent, and whether each parent is likely to comply with the modification;
  4. The extent to which the parent opposing the legal residence change is motivated by a desire to secure a financial advantage with respect to a supporting obligation; and,
  5. Domestic violence, regardless of whether the violence was directed against or witnessed by the child.

Minnesota:

Minn. Stat. Ann. §518.175, subdiv. 3. Minnesota places the burden of proving relocation on the custodial parent. A best interest analysis is applied in which the following factors are considered:

  1. The nature, quality, extent of involvement, and duration of the child's relationship with the person proposing to relocate and with the non-relocating person, siblings, and other significant persons in the child's life;
  2. The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child's physical, educational, and emotional development, taking into consideration special needs of the child;
  3. The feasibility of preserving the relationship between the non-relocating person and the child through suitable parenting time arrangements, considering the logistics and financial circumstances of the parties;
  4. The child's preference, taking into consideration the age and maturity of the child;
  5. Whether there is an established pattern of conduct of the person seeking the relocation either to promote or thwart the relationship of the child and the non-relocating person;
  6. Whether the relocation of the child will enhance the general quality of the life for both the custodial parent seeking the relocation and the child including, but not limited to, financial or emotional benefit or educational opportunity;
  7. The reasons of each person for seeking or opposing the relocation; and,
  8. The effect on the safety and welfare of the child, or of the parent requesting to move the child's residence, of domestic abuse.

Nevertheless, if the parent seeking to relocate has been the victim of domestic abuse by the other parent, then the burden of proof is on the parent opposing the move.

Mississippi:

No statute on child relocation exists in Mississippi. The mere moving of one party is insufficient grounds for modification. Cooley v. Cooley, 574 So.2d 694, 699 (Miss. 1991). The effect of the move on the child and the custody arrangement seeking to be modified are considered in determining relocation application. Pearson v. Pearson, 11 So. 3d 178 (Miss. Ct. App. 2009).

Missouri:

Mo. Rev. Stat. §452.377, §452.385 & §452.411. The statute is modeled after the AAML's model relocation statute. Absent exigent circumstances, written notice of the move shall be provided 60 days in advance of the intended move. The statute details the information which should be provided in the notice. If a party opposes the relocation, he or she must submit a Motion to the Court within 30 days of receipt of the notice. In such case, the party seeking to relocate has the burden to prove that the proposed relocation is made in good faith and is in the best interest of the child. If relocation is granted, then the court shall set a parenting schedule for the noncustodial parent and the child which shall allocate transportation costs between the parties.

Montana:

Mont. Code Ann. §40-4-212 & §40-4-217. Statute requires parent that intends to relocate with a child to provide notice to the other parent. If the move will affect the other parent's contact with the child, the notice shall be provided at least 30 days prior to the intended move. The case law and statute provide that the standard is a best interest analysis. In re the Marriage of Robinson, 53 P.3d 1279 (Mont. 2002). In 1997, the statute on relocation was amended from a presumption permitting a custodial parent to change his or her residence absence a restraint from the Court based on the welfare of the child. The current statute requires an analysis of whether the "change is necessary to serve the best interest of the child." As set forth in Mont. Code Ann. §40-4-212, the court shall consider all of the following relevant parenting factors to determine the best interest of the child:

  1. The wishes of the child's parent or parents;
  2. The wishes of the child;
  3. The interaction and interrelationship of the child with the child's parent or parents and siblings and with any other person who significantly affects the child's best interest;
  4. The child's adjustment to home, school, and community;
  5. The mental and physical health of all individuals involved;
  6. Physical abuse or threat of physical abuse by one parent against the other parent or the child;
  7. Chemical dependency or chemical abuse on the part of either parent;
  8. Continuity and stability of care;
  9. Developmental needs of the child;
  10. Whether a parent has knowingly failed to pay birth-related costs that the parent is able to pay, which is considered to be not in the child's best interests;
  11. Whether a parent has knowingly failed to financially support a child that the parent is able to support, which is considered to be not in the child's best interests;
  12. Whether the child has frequent and continuing contact with both parents, which is considered to be in the child's best interests unless the court determines, after a hearing, that contact with a parent would be detrimental to the child's best interests. In making that determination, the court shall consider evidence of physical abuse or threat of physical abuse by one parent against the other parent or the child, including but not limited to whether a parent or other person residing in that parent's household has been convicted of any crimes; and
  13. Adverse effects on the child resulting from continuous and vexatious parenting plan amendment actions.

Nebraska:

No statute on child relocation exists in Nebraska. The parent seeking to relocation bears the burden to prove legitimate reason for proposed relocation and that relocation is in child's best interest. Tremain v. Tremain, 646 N.W.2d 661 (Neb. 2002). In Wild v. Wild, 696 N.W.2d 886 (Neb. Ct. App. 2005), the Court established the following factors to be considered in adjudicating a relocation application:

  1. Each parent's motives for seeking or opposing the removal of the minor child from the jurisdiction;
  2. The potential that the move holds for enhancing the quality of life for the child and the custodial parent; and,
    1. Emotional, physical and developmental needs;
    2. Child's opinion or preference;
    3. Enhancement of income or employment;
    4. Housing or living conditions;
    5. Educational advantages;
    6. Quality of relationship between child and parents;
    7. Ties to community and extended family; and,
    8. Hostilities between parties.
  3. The impact of the move on the communication between child and noncustodial parent.

Nevada:

Nev. Rev. Stat. §125.248 & §125C.200. The statute provides that if the noncustodial parent objects to the move, the custodial parent must petition the court for permission to relocate. The case law establishes the standard for adjudicating relocation cases whereby the custodial parent must demonstrate that there is an actual advantage to the child for the move and that if this burden is met, then the court will examine five factors and six sub-factors to consider. Initially, the following five factors are considered:

  1. The extent to which the move is likely to improve the quality of life for both the children and the custodial parent;
  2. Whether the custodial parent's motives are honorable, and not designed to frustrate or defeat visitation rights accorded to the non-custodial parent;
  3. Whether, if permission to remove is granted, the custodial parent will comply with any substitute visitation orders issued by the court;
  4. Whether the non-custodian's motives are honorable in resisting the motion for permission to remove, or to what extent, if any, the opposition is intended to secure a financial advantage in the form of ongoing support obligations or otherwise; and,
  5. Whether, if removal is allowed, there will be a realistic opportunity for the non-custodial parent to maintain a visitation schedule that will adequately foster and preserve the parental relationship with the non-custodial parent.

Then, the following six sub-factors are considered:

  1. Whether positive family care and support, including that of the extended family, will be enhanced;
  2. Whether housing and environmental living conditions will be improved;
  3. Whether educational advantages for the children will result;
  4. Whether the custodial parent's employment and income will improve;
  5. Whether special needs of a child, medical or otherwise, will be better served; and,
  6. Whether, in the child's opinion, circumstances and relationships will be improved.

Schwartz v. Schwartz, 812 P.2d 1268 (Nev. 1991). In rendering its decision, the Nevada Supreme Court cited Baures v. Lewis, Holder v. Polanski, and D'Onofrio v. D'Onofrio.

New Hampshire:

In New Hampshire, the parent seeking to relocate bears the initial burden to prove that the proposed relocation is for a legitimate purpose and is reasonable. If this burden is met, then the nonrelocating parent bears burden to prove that relocation is not in child's best interest. The parent seeking to relocate must provide 60 days' notice. The statute provides that the custodial parent's declaration that she/he will not relocate without the child should not be a factor considered by the Court.

N.H. Rev. Stat. §461-A: 12. In determining a relocation application, N.H. Rev. Stat. §461-A:6 addresses the following factors under the best interest statute for child:

  1. The relationship of the child with each parent and the ability of each parent to provide the child with nurture, love, affection, and guidance.
  2. The ability of each parent to assure that the child receives adequate food, clothing, shelter, medical care, and a safe environment.
  3. The child's developmental needs and the ability of each parent to meet them, both in the present and in the future.
  4. The quality of the child's adjustment to the child's school and community and the potential effect of any change.
  5. The ability and disposition of each parent to foster a positive relationship and frequent and continuing physical, written, and telephonic contact with the other parent, including whether contact is likely to result in harm to the child or to a parent.
  6. The support of each parent for the child's contact with the other parent as shown by allowing and promoting such contact, including whether contact is likely to result in harm to the child or to a parent.
  7. The support of each parent for the child's relationship with the other parent, including whether contact is likely to result in harm to the child or to a parent.
  8. The relationship of the child with any other person who may significantly affect the child.
  9. The ability of the parents to communicate, cooperate with each other, and make joint decisions concerning the children, including whether contact is likely to result in harm to the child or to a parent.
  10. Any evidence of abuse, as defined in RSA 173-B:1, I or RSA 169-C:3, II, and the impact of the abuse on the child and on the relationship between the child and the abusing parent.
  11. If a parent is incarcerated, the reason for and the length of the incarceration, and any unique issues that arise as a result of incarceration.
  12. Any other additional factors the court deems relevant.

New Jersey:

N.J. Stat. Ann. §9:2-2. In the State of New Jersey, there is a shifting presumption whereby the parent seeking to relocate has the initial burden to prove that proposed relocation is made in good faith and will not be inimical to the child's best interest. If burden is met, non-relocating parent bears burden to prove that proposed relocation is not made in good faith and is inimical to the child's best interest. Baures v. Lewis, 770 A.2d 214 (2001).

New Mexico:

N.M. Stat. Ann. §40-4-9.1. New Mexico has a general custody statute which has a presumption of joint custody. In adjudicating a relocation case, the courts treat the relocation as a change in circumstance and review the application to determine whether joint custody is no longer in the best interest of the child. Jaramillo v. Jaramillo, 823 P.2d 299 (N.M. 1991).

New York:

No statute on child relocation exists in New York. Custodial parent has burden to prove that relocation is in child's best interest. Five factors to be considered in relocation established by New York Court of Appeals, are as follows:

  1. Each parent's reasons for seeking or opposing the move;
  2. The quality of the relationships between the child and the custodial and non-custodial parents;
  3. The impact of the move on the quantity and quality of the child's future contact with the non-custodial parent;
  4. The degree to which the custodial parents and child's life may be enhanced economically, emotionally and educationally by the move; and
  5. The feasibility of preserving the relationship between the non-custodial parent and the child through suitable visitation arrangements.

Tropea v. Tropea, 665 N.E.2d 145 (N.Y. 1996); Paul v. Pagnillo, 13 A.D.3d 971 (N.Y. App. Div. 2004).

North Carolina:

N.C. Gen. Stat. § 50-13.7. In North Carolina, a noncustodial parent bears the burden to prove that the relocation would be a change in circumstances rendering a review of the custody order in place. The Court must first determine whether removal is a change in circumstance and if so, then it may modify the custody order based on the best interests of the child. Evans v. Evans, 530 S.E.2d 576 (N.C. Ct. App. 2000). Not every relocation is viewed as a change in circumstance warranting a custody modification. Rather, in evaluating the best interests of a child in a proposed relocation, Evans, dictates that the trial court may appropriately consider several factors including:

  1. The advantages of the relocation in terms of its capacity to improve the life of the child;
  2. The motives of the custodial parent in seeking the move;
  3. The likelihood that the custodial parent will comply with Visitation Orders when he or she is no longer subject to the jurisdiction of the Courts of North Carolina;
  4. The integrity of the noncustodial parent in resisting the relocation; and,
  5. The likelihood that a realistic visitation schedule can be arranged which will preserve and foster the parental relationship with the noncustodial parent.

North Dakota:

N.D. Cent. Code Ann. §14-09-06.2 & §14-09-07. The North Dakota statute specifically states that permission of the noncustodial parent is not needed if she/he has relocated to another state or is more than 50 miles from the primary residence of the custodial parent. In North Dakota, the custodial parent must prove by preponderance of the evidence that a move is in the best interest of the child. Dickson v. Dickson, 634 N.W.2d 76 (N.D. 2001). The Court established the following four factors to consider in analysis:

  1. The prospective advantages of the move in improving the custodial parent's and child's quality of life;
  2. The integrity of the custodial parent's motive for relocation, considering whether it is to defeat or deter visitation by the noncustodial parent;
  3. The integrity of the noncustodial parent's motives for opposing the move; and,
  4. The potential negative impact on the relationship between the noncustodial parent and the child, including whether there is a realistic opportunity for visitation which can provide an adequate basis for preserving and fostering the noncustodial parent's relationship with the child if relocation is allowed, and the likelihood that each parent will comply with such alternate visitation.

SeeSeay v. Seay, 820 N.W.2d 705, 711 (N.D. 2012).

Ohio:

Ohio Rev. Code Ann. §3109.051. In Ohio, the parent that is seeking to relocate bears the burden of proof to establish that the proposed relocation constitutes a material change and is in the child's best interests. Court will rely upon general best interest factors relied upon in custody cases detailed in Ohio Rev. Code Ann. §3109.04(F).

Oklahoma:

Okla. Stat. Ann. tit. 43, §112.2A and §112.3. Prior to relocation, the custodial parent must provide notice to the other party 60 days prior to the move and said notice shall include detailed information regarding the proposed new residence. If opposed, the noncustodial parent has to file an application opposing the move within 30 days of when notice is received and absence timely compliance, the relocation is deemed authorized. The statute provides the Court with authority to either restrain the move or permit the move pending a hearing. The statute details eight factors to be considered by the Court, including any other factors affecting the best interest of the child:

  1. The nature, quality, extent of involvement, and duration of the child's relationship with the person proposing to relocate and with the nonrelocating person, siblings, and other significant persons in the child's life;
  2. The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child's physical, educational, and emotional development, taking into consideration any special needs of the child;
  3. The feasibility of preserving the relationship between the nonrelocating person and the child through suitable visitation arrangements, considering the logistics and financial circumstances of the parties;
  4. The child's preference, taking into consideration the age and maturity of the child;
  5. Whether there is an established pattern of conduct of the person seeking the relocation, either to promote or thwart the relationship of the child and the nonrelocating person;
  6. Whether the relocation of the child will enhance the general quality of life for both the custodial party seeking the relocation and the child, including but not limited to financial or emotional benefit or educational opportunity;
  7. The reasons of each person for seeking or opposing the relocation; and,
  8. Any other factor affecting the best interest of the child.

The statute also lists certain factors such as a temporary relocation which was authorized as precedent or a custodial parent's declaration that he or she will not relocate if the child is not permitted to relocate with him/her. The statute also provides that the relocating party bears the burden of proof to establish that the request to move is made in good faith and if that burden is met then the noncustodial parent has the burden to show that the relocation is not in the child's best interest. Relocation is defined as 75 miles from the child's principal residence and does not apply to temporary relocations for 60 days or less. The laws in Oklahoma are favorable toward relocation. Casey v. Casey, 58 P.3d 763 (Okla. 2002).

Oregon:

Or. Rev. Stat. Ann. §107.159. In Oregon, a relocation application is viewed as a modification of custody. The burden is on the parent seeking to modify custody to demonstrate a substantial change in circumstances since time of initial custody award and if burden is met, the Court will determine application based on best interest of the child. The statute provides that neither parent can relocate beyond 60 miles from the other party's residence without giving other party reasonable opportunity to change his or her residence. Or. Rev. Stat. Ann. §107.137 details the following custody factors to be considered by the Court which set forth the best interest factors:

  1. The emotional ties between the child and other family members;
  2. The interest of the parties in and attitude toward the child;
  3. The desirability of continuing an existing relationship;
  4. The abuse of one parent by the other;
  5. The preference for the primary caregiver of the child, if the caregiver is deemed fit by the court; and,
  6. The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.

Colson v. Peil, 51 P.3d 607 (Or. Ct. App. 2002).

Pennsylvania:

23 Pa. Cons. Stat. Ann. §5337. The statute requires that the parenting seeking to relocate provide 60 days' notice which shall provide specific details about the intended relocation as well as a proposed visitation schedule after the move. If the non-relocating parent objects to the move, said parent shall file the objection to the move with the court within 30 days after notice was provided. The party seeking to relocate has burden to prove that relocation will serve best interests of child as per statutory factors set forth below and each party has burden to prove integrity in favor and opposition of move:

  1. Nature, extent and duration of child's relationship with non-relocating parent and other significant persons in child's life;
  2. Age, development stage and needs of child and likely impact relocation will have on child's physical, educational and emotional development;
  3. Feasibility of preserving relationship between child and non-relocating parent;
  4. Child's preference, taking into consideration age and maturity of child;
  5. Whether there is pattern or conduct of either party to promote or thwart relationship of child with other parent;
  6. Whether relocation will enhance general quality of life for party seeking relocation, emotionally, financially and educationally;
  7. Whether relocation will enhance general quality of life of child, financially and emotionally and educationally;
  8. Reason and motivation for and against relocation;
  9. Present and past abuse committed by party or member of party's household and whether there is continued risk of harm to child or abused party; and,
  10. Any other factor affecting best interest of child.

Rhode Island:

No statute on child relocation exists in Rhode Island. Rhode Island does not have a presumption in favor or against relocation. Both parties must present evidence concerning whether or not the relocation is in the child's best interest. Dupre v. Dupre, 857 A.2d 242 (R.I. 2004). In making the best interest determination, the Court will examine eight factors:

  1. The child's relationship with the non-relocating parent;
  2. The child's relationship with non-relocating parent;
  3. The impact relocation will have on child;
  4. The feasibility of preserving relationship of child and non-relocating parent;
  5. The existence of extended family available to child in both locations;
  6. The reasons for and against the move;
  7. If an international relocation, whether the country is a member of the Hague Convention; and
  8. The best interest factors used in custody determinations.

South Carolina:

No statute on child relocation exists in South Carolina. In South Carolina, there is no longer a presumption against relocation. The child's best interests controls the analysis. Latimer v. Famer, 602 S.E.2d 32 (S.C. 2004). In a relocation case, the moving party bears the burden to show that the welfare of the child requires the court to ignore and set aside the parties' agreement/decree on custody. The Courts have stated that the mere relocation does not necessarily burden the non-custodial parent's visitation rights. Walrath v. Pope, 384 S.C. 101 (S.C. Ct. App. 2009).

South Dakota:

S.D. Codified Laws §25-5-13 & §25-4A-17 to 19. South Dakota has a presumption in favor of relocation – case law establishes that relocation statute requires a best interest analysis in relocation cases. Heinen v. Heinen, 753 N.W. 2d 891 (S.D. 2008).

Tennessee:

Tenn. Code Ann. §36-6-108. Two-prong test whereby there is a presumption favoring relocation unless noncustodial parent can establish no reasonable purpose for move, harm to child or vindictive motive for move. Taylor v Taylor, 849 S.W. 2d 319. Then, a presumption of best interest is applied. The statute defines relocation as more than 50 miles from the other parent or outside the state. The statute has a notice requirement requiring the custodial parent to provide 60 days' notice of the intended relocation, and the statute details the type of information that must be provided in the notice. If there is objection, the nonrelocating parent has to file the petition objecting to the relocation within 30 days of the notice. In adjudicating the application, the court will assess the cost involved in transportation so that the noncustodial parent can have parenting time with the child.

If the parties are spending equal time with the child, the court shall determine the application based on a best interests standard. There shall be no presumption in favor of or against the relocation. If one party is the custodial parent, then there is a presumption in favor of relocation unless the nonrelocating parent can demonstrate the factors detailed above. The statute also defines specific and serious harm to the child.

Texas:

No statute on child relocation exists in Texas -- but the best interest of the child is regulated in Tex. Fam. Code Ann. §153.002. A party seeking to relocate must prove a change in circumstance warranting a modification of custody. Bates v. Tesar, 81 S.W.3d 411 (Tex. App. 2002) (case details five factors to be considered by Court which focus on child's relationship and future relationship with non-custodial parent and motive for move and opposition to move).

Utah:

Utah Code Ann. §30-3-37. The parent seeking to relocate has to provide 60 days written notice to the other parent. The parent seeking to relocate has the burden to file the application requesting permission for the relocation. The Court will conduct a hearing to determine if the relocation is in the best interest of the child. If the Court finds that relocation is in the child's best interest, then it may allocate the transportation costs for child to visit with noncustodial parent. Statute even provides a minimum parenting schedule for children ages 5 to 18. Relocation is defined as 150 miles away from the other parent.

Vermont:

No statute directly on child relocation exists in Vermont. 15 Vt. Stat. Ann. Tit. 15, §668 details provisions for a modification of a custody order. There is a presumption in favor of relocation in Vermont provided that relocation will not significantly impair either parent's ability to exercise responsibilities the other parent has been exercising. Hawkes v. Spence, 878 A.2d 273 (Vt. 2005). The Court should give deference to custodial parent's preference for relocation. Lane v. Schenck, 614 A.2d 786 (Vt. 1992).

Virginia:

Va. Code Ann. §20-124.5. The party seeking to relocate must provide 30 days advance notice of the relocation to the court and the non-relocating party. In determining a relocation application, the parent seeking to relocate bears the burden to prove a material change of circumstance and that the proposed relocation is in the child's best interest. Surles v. Mayer, 628 S.E.2d 563 (Va. Ct. App. 2006). No specific factors are enumerated in the statute for determining the relocation application and the Virginia courts apply the best interest factors detailed in Va. Code Ann. §20-124.3, as follows:

  1. The age and physical and mental condition of the child, giving due consideration to the child's changing developmental needs;
  2. The age and physical and mental condition of each parent;
  3. The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child's life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;
  4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;
  5. The role that each parent has played and will play in the future, in the upbringing and care of the child;
  6. The propensity of each parent to actively support the child's contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;
  7. The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;
  8. The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference;
  9. Any history of family abuse as that term is defined in § 16.1-228 or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; and,
  10. Such other factors as the court deems necessary and proper to the determination.

Washington:

Wash. Rev. Code Ann. §26.09.430 to §26.09.520. In Washington, there is a presumption in favor of relocating. The party seeking to relocate must provide 60 days' notice of intended relocation and then non-relocating parent can file an objection to the proposed relocation within 30 days. Absent an objection, the relocation shall be permitted. If an objection is timely filed, the nonrelocating party bears the burden to prove that detrimental effect of proposed relocation outweighs benefits. The statute carves out domestic violence victims from the notice requirements of the statute. The following eleven statutory factors are considered by the court:

  1. The relative strength, nature, quality, extent of involvement, and stability of the child's relationship with each parent, siblings, and other significant persons in the child's life;
  2. Prior agreements of the parties;
  3. Whether disrupting the contact between the child and the person with whom the child resides a majority of the time would be more detrimental to the child than disrupting contact between the child and the person objecting to the relocation;
  4. Whether either parent or a person entitled to residential time with the child is subject to limitations under RCW 26.09.191;
  5. The reasons of each person for seeking or opposing the relocation and the good faith of each of the parties in requesting or opposing the relocation;
  6. The age, developmental stage, and needs of the child, and the likely impact the relocation or its prevention will have on the child's physical, educational, and emotional development, taking into consideration any special needs of the child;
  7. The quality of life, resources, and opportunities available to the child and to the relocating party in the current and proposed geographic locations;
  8. The availability of alternative arrangements to foster and continue the child's relationship with and access to the other parent;
  9. The alternatives to relocation and whether it is feasible and desirable for the other party to relocate also;
  10. The financial impact and logistics of the relocation or its prevention; and,
  11. For a temporary order, the amount of time before a final decision can be made at trial.

West Virginia:

W. Va. Code Ann. §48-9-403. In West Virginia, there is a presumption in favor of relocation if the proposed relocation is made in good faith for a legitimate purpose, and to a location that is reasonable. Stories v. Simmons, 693 S.E. 2d 70 (W.Va. 2010). A move with a legitimate purpose is reasonable unless its purpose is shown to be substantially achievable without moving or by moving to a location that is substantially less disruptive of other parent's relationship with child. Even if relocating parent cannot meet this burden, relocation may still be allowed if relocating parent can show that relocation is in the child's best interest as a modification of the custody/parenting plan may be accomplished. The parent seeking to relocate must give 60 days' advance notice with specific details.

Wisconsin:

Wis. Stat. Ann. §767.481. Wisconsin has a presumption in favor of relocation. The noncustodial parent must submit an application opposing the move after notice is provided of the intended and noncustodial parent has burden of proof to establish that there is not a reasonable purpose for the move and that move will disrupt noncustodial parent's relationship with the child. Long v. Long, 381 N.W.2d 350 (Wis. 1986).

Wyoming:

Wyo. Stat. Ann. §20-2-202. A relocation by the custodial parent of a child is viewed as a material change of circumstance sufficient to warrant a modification of custody. Arnott v. Arnott, 293 P.3d 440 (Wyo. 2012). There are no presumptions in favor or against removal. The Supreme Court decision of Arnott modified the prior law in Wyoming for a strong presumption in favor of relocating. The Arnott Court cited two New Jersey cases of D'Onofrio v. D'Onofrio and Cooper v. Cooper, but did not cite Baures v. Lewis.

In Summary, Case Law From Other
Jurisdictions Can Be Used To Challenge Baures v. Lewis:

The law that was relied upon by the Court in Baures v. Lewis can be challenged. Of the seven states that the Supreme Court of New Jersey viewed as having a presumption in favor of relocation, six of these states have either changed or hardened the law making relocation more difficult in these states. Not only has most of case law relied upon by Baures been overruled or distinguished, but the trend in other states recognize the difficult that relocation poses for the non-custodial parent. More than half of the states in the United States place the burden of proof on the parent seeking to relocate. More than half of the states in the United States do not specifically specify a presumption, while 20% of the states in the United States specifically state that they do not have a presumption in favor of or against relocation. Nearly, 75% of the states in the United States have statutes on the issue of relocation and another 84% of the states consider the best interest of the child as part of the analysis when determining a relocation application. One-fifth of the states in the United 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 the states in the United States require that the parent seeking to relocate provide a specific amount of notice to the other parent.

Whereas the Supreme Court of New Jersey recognized and adopted a prior liberal trend permitting relocation nearly fifteen years ago, that trend has shifted. While the courts previously examined the relocation from the perspective of the custodial parent and other courts considered the relocation from the perspective of the nonrelocating 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 the states focus on the best interests of the child in determining relocation applications.


[1] Sheryl J. Seiden, Esq. is the founding partner at Seiden Family Law, LLC in Cranford, New Jersey. She wishes to thank Vito Colasurdo, Jr., Esq, Christina V. Kolevich, Esq. and the members of the relocation subcommittee of the Family Law Section of the New Jersey State Bar Association for their research on the relocation laws throughout the 50 states: Arlene Albino, Esq., Sandy Durst, Esq., Christine Fitzgerald, Esq., Derek Freed, Esq., Karin Haber, Esq., Ronald Lieberman, Esq., Dina Mikulka, Esq., Jennifer Millner, Esq., and Charles Vuotto, Esq., all of whose research was instrumental in preparing this article. This article was first published by ICLE for the Family Law Symposium in January 2015.

[2] In Baures v Lewis, the Supreme Court of New Jersey had addressed the relocation issue. In Cooper v. Cooper, 99 N.J. 42 (1984) (Supreme Court of New Jersey reversed Appellate Division's reversal of trial Court's Order granting mother's application to relocate from New Jersey to California) and in Holder v. Polanski, 111 N.J. 344 (1988) where the Supreme Court of New Jersey reversed and remanded Appellate Division's denial of mother's request to relocate from New Jersey to Connecticut.

[3] Baures v. Lewis, 167 N.J. 91, 105 (2001). Seealso Edwin J. Terry et al., Relocation: Moving Forward or Moving Backward?, 31 Tex. Tech. L. Rev. 983, 986 (2000).

[4] See Baures, 167 N.J. at 105. See also Chris Ford, Untying the Relocation Knot: Recent Developments and a Model For Change, 7 Colum. J. Gender & L. 1, 7 (1997). While historically courts were reluctant to permit out of state removal for fear of losing jurisdiction, this is no longer a concern as all fifty states and the District of Columbia have adopted the Uniform Child Custody Jurisdiction Act which addresses these jurisdictional issues.

[5] The Baures' Court specifically noted that long distance calling rates were more competitive. Id. at 105.

[6] Judith S. Wallerstein et al., To Move or Not to Move: Psychological and Legal Considerations in the Relocation of Children Following Divorce, 30 Fam. L.Q. 305, 311-12 (1996) (stating that psychological adjustment of custodial parent consistently has been found to be related to child's adjustment); Marsha Kline et al., Children's Adjustment in Joint and Sole Custody Families, 25 Develop. Psych. 430, 431 (1989) (noting that research indicates that factor associated with good outcomes for children in post-divorce families includes a close, sensitive relationship with a psychologically intact custodial parent).

[7] Judith S. Wallerstein et al., The Unexpected Legacy of Divorce 215 (2000).

[8] Eleanor E. Maccoby & Robert H. Mnookin, Dividing the Child: Social and Legal Dilemmas of Custody (1992); E Marvis Hetherington et al., Long-Term Effects of Divorce and Remarriage on the Adjustments of Children, 24 J. Am. Acad. Child Psych. 518 (1985).

[9] In 2013, Newark Airport handled 35 million passengers, JFK handled 50.4 million, and LaGuardia handled 26.7 million. There were 35,016,236 passengers that traveled through Newark Liberty International Airport in 2013 compared with 31,100,491 in 2001. "Press Release Article - Port Authority of NY & NJ", Panynj.gov, (June 28, 2013), http://www.panynj.gov/airports/pdf-traffic/DEC2012_EWR.pdf.

[10] Jareen Iman, The Surprising Comeback of Train Travel, CNN iReport (October 18, 2014), http://www.cnn.com/2014/10/15/travel/irpt-train-comeback/index.html.

[11] Elisabeth Bach-Van Horn, Virtual Visitations: Are Webcams Being Used As An Excuse To Allow Relocation?, 21 J. Am. Acad. Matrim. Law. 171 (June 4, 2008).

[12] James LaMarca, Virtually Possible – Using the Internet To Facilitate Custody and Parenting: Beyond Relocation, 38 Rutgers Computer & Tech. L.J. 146 (2012).

[13] See InternetVisitation.org, http://www.internetvisitation.org. In 2013, the following states had enacted virtual visitation laws: Utah, Wisconsin, Texas, Florida, Illinois, North Carolina, and Indiana.

[14] See Bill A3107 proposed in 212th Legislature.

[15] Kenneth Waldron, A Review of Social Science Research on Post Divorce Relocation,19 J. Am. Acad. Matrim. Law. 337, 342 (2005).

[16] In its opinion, the Supreme Court of New Jersey relied upon the following article: Judith S. Wallerstein & Tony Tanke, To Move or Not to Move Psychological and Legal Considerations In The Relocation of Children Following Divorce, 30 Fam. L.Q. 305 (1996).

[17] Richard A. Warshak, Ph.D., Social Science and Children's Best Interests In Relocation Cases: Burgess Revisited, 34 Fam. L.Q. 83 (2000);Judith Wallerstein & Joan Kelly, Surviving the Breakup 311 (1980).

[18] See Judith Wallerstein & Joan Kelly, Surviving the Break Up, 194, 307-311 (1980) (suggesting that psychological well-being of a child is influenced by continuing contact with both parents), as cited in Cooper v. Cooper, 99 N.J. at 612.

[19] Frank F. Furstenberg & Andrew J. Cherlin, Divided families: What Happens to Children When Parents Part 72 (1991).

[20] Charles F. Vuotto, Jr. & Mark Biel, Relocation Revisited: Is It Time For A Legislative Response?.

[21] Joan Kelly & Michael Lamb, Development Issues in Relocation Cases Involving young Children: When, Whether and How?, 17 J. of Fam. Psych. 193 (2003).

[22] Sanford L. Braver, Ira M. Ellman & William V. Fabricius, Relocation of Children After Divorce and Children's Best Interests: New Evidence and Legal Considerations, 171 Fam. Psych. 206, 214 (2003).

[23] William V. Fabricius, Listening to Children of Divorce: New Findings that Diverge from Wallerstein, Lewis and Balkeslee, 52 Fam. Relations 385 (2003).

[24] Ronald Lieberman, The Underpinnings of Baures v. Lewis Crumble Under Scrutiny, Family Law Symposium (2015).

[25] Richard A. Garnder, M.D., The Burgess Decision and the Wallerstein Brief, 26 J. of Am. Acad. Of Psychiatry and the Law 3, 425-31 (1998).

[26] Id. at 30.

[27] The Burgess court noted "that amica curiae Professor Judith S. Wallerstein, who has published extensively on issues concerning children after divorce, observes that for "reasonably mature adolescents, i.e., those who are well adjusted and performing on course in their education and social relationships … stability may not lie with either parent, but may have its source in a circle of friends or particular sports or academic activities within a school or community." She suggests that "[t]hese adolescents should be given the choice … as to whether they wish to move with the moving parent." Burgess, 913 P.2d at 483.

[28] Of significance, in adjudicating LaMusga, the Supreme Court of California was provided with amicus briefs from both Dr. Wallerstein and Dr. Richard Warshak, Dr. Sanford Braver, Dr. Joan Kelly, Dr. James Bray submitted on behalf of the LaMusga children. The later brief critiqued Dr. Wallerstein's amicus brief and her research in providing research on the benefits of preserving children's relationship with both parents. See Amicus Curiae Brief of Richard A. Warshak PH.D, Sanford L. Braver PH.D., Joan B. Kelly PH.D, James H. Bray, PH.D., et al., on behalf of LaMusga children. Submitted in In re Marriage of LaMusga, Case No. S107355. Seealso Ronald Lieberman, The Underpinnings of Baures v. Lewis Crumble Under Scrutiny, Family Law Symposium (January 2015), which provides a detailed explanation of the social science data that was relief upon in Burgess and Baures v. Lewis which was reconsidered by the Supreme Court of California in LaMusga, but has yet to be reconsidered by the Supreme Court of New Jersey.