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. 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.

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". In a traditional parenting case, the law in New Jersey is dictated by the well-known Supreme Court of New Jersey case of Baures v. Lewis, 167 N.J. 91 (2001) which created a presumption which favors relocation. 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.

The Baures case was decided fifteen years ago. A dissection of Baures v. Lewis, supra, reveals that there were three primary reasons that the Court ultimately embraced 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 which made it easier for people to connect with one another from afar. While there is no doubt that technology has continued to advance since the Supreme Court of New Jersey decided Bauers, these enhancements cannot replace physical parenting of a child.

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 confirmed that what is good for the custodial parent is good for the child and that so long as the child had regular communication with the noncustodial parent, the child's interests were served. These conclusions were based upon social science opined upon by

Dr. Judith S. Wallerstein which 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 jeopardized. Moreover, 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.

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 other states had reduced the burden on the custodial parent seeking to relocate. The Court considered the law in seven other jurisdictions in making its determination to relax its relocation laws. Now, nearly fifteen years later, the law in these other jurisdictions has changed. In two of those states – Colorado and Minnesota -- the law has changed, in four of those states – California, New York, Tennessee, and South Dakota -- the law has hardened, and in only one of the seven states – Wisconsin - the law has remained unchanged.

In rendering the Baures v. Lewis decision, the Court 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. The three part test established in Francis to be applied in relocation cases in Colorado, was abolished by legislation in Colorado on September 1, 2001 – just four months after the Supreme Court of New Jersey decided Baures v. Lewis. Thereafter, 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, and the court relied 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 deciding Baures, the Supreme Court of New Jersey also 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 a prior hostile approach toward relocation, which the Court interpreted as a trend in favor of relocation. Approximately three years after Baures was decided, in In re Marriage of LaMusga, 88 P.3d 81 (Cal. 2004), 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.

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 had lessened the burden on custodial parents seeking to relocate in Tropea v. Tropea, 665 N.E.2d 145 (N.Y. 1996). However, over the last nineteen years, the standard in New York for relocation continues to remain a difficult one to overcome for the custodial parent as the lower courts in New York place a difficult burden on the custodial parent seeking to relocate.

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. 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). 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).

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. 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 as the case law thereafter limited the custodial parent's unfettered right to relocate. 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). 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.

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 that 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. However, in 2006, the case of Auge v. Auge, was overruled by statute whereby the presumption in favor of relocation was eliminated.

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. While 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 law that was relied upon by the Court in Baures v. Lewis can be challenged. Not only has most of case law relied upon by Baures been overruled or distinguished, but the trend in other states recognize the difficulty 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 a the founding partner of Seiden Family Law in Cranford, New Jersey where she focuses her law practice on family law issues. She is an officer of the Family Law Section of the NJSBA and a fellow of the American Academy of Matrimonial Lawyers.