Factors Considered

Most jurisdictions have promulgated lengthy lists of factors to be utilized in determining whether a custodial parent’s proposed relocation should be permitted. In general, there is a substantial overlap among the jurisdictions, with many states using substantially similar factor lists. The New Jersey Supreme Court has fashioned a typical example of one of these lists.

With those principles in mind, in assessing whether to order removal, the court should look to the following factors relevant to the plaintiff’s burden of proving good faith and that the move will not be inimical to the child’s interest:

  1. the reasons given for the move
  2. the reasons given for the opposition
  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 here
  5. any special 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 noncustodial 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 noncustodial parent if the move is allowed
  8. the effect of the move on extended family relationships here and in the 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 noncustodial parent has the ability to relocate
  12. any other factor bearing on the child’s interest

Baures v. Lewis, 167 N.J. 91, 770 A.2d 214, 229-30 (2001). For other states’ factor lists, see, e.g., Hollandsworth v. Knyzewski, 353 Ark. 470, 109 S.W.3d 653 (2003); In re Marriage of LaMusga, 32 Cal. 4th 1072, 88 P.3d 81, 12 Cal. Rptr. 3d 356 (2004); McLaughlin v. McLaughlin, 264 Neb. 232, 647 N.W.2d 577 (2002); and Tropea v. Tropea, 87 N.Y.2d 727, 665 N.E.2d 145, 642 N.Y.S.2d 575 (1996).

Other jurisdictions have set forth the required factors to be considered in relocation cases by statute. One of the most comprehensive factor lists can be found at La. Rev. Stat. Ann. 9:355.12 (2004).

  1. In reaching its decision regarding a proposed relocation, the court shall consider the following factors:
    1. The nature, quality, extent of involvement, and duration of the child’s relationship with the parent proposing to relocate and with the nonrelocating parent, 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 a good relationship between the nonrelocating parent 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 parent seeking the relocation, either to promote or thwart the relationship of the child and the nonrelocating party
    6. Whether the relocation of the child will enhance the general quality of 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 parent for seeking or opposing the relocation
    8. The current employment and economic circumstances of each parent and whether or not the proposed relocation is necessary to improve the circumstances of the parent seeking relocation of the child
    9. The extent to which the objecting parent has fulfilled his or her financial obligations to the parent seeking relocation, including child support, spousal support, and community property obligations
    10. The feasibility of a relocation by the objecting parent
    11. Any history of substance abuse or violence by either parent, including a consideration of the severity of such conduct and the failure or success of any attempts at rehabilitation
    12. Any other factors affecting the best interest of the child
  2. The court may not consider whether or not the person seeking relocation of the child will relocate without the child if relocation is denied or whether or not the person opposing relocation will also relocate if relocation is allowed.

For other statutes containing relocation factors, see, e.g., Mich. Comp. Laws Ann. 722.31 (2004); Tenn. Code Ann. 36-6-108 (2004); Utah Code Ann. 30-3-37 (2004); and Wash. Rev. Code Ann. 26.09.520 (2004). Other factors that have also been utilized in relocation disputes include:

  1. whether the reasons given either for or against the proposed move were designed to gain a financial advantage regarding a continuing child support obligation, Ariz. Rev. Stat. Ann. 25-408 (2004)
  2. whether there are advantages to the child’s remaining with the primary caregiver, Colo. Rev. Stat. Ann. 14-10-129 (2004)
  3. whether the cost of travel is affordable by the parties, Fla. Stat. Ann. 61.13 (2004); and
  4. whether the proposed relocation is to a foreign country which does not normally enforce the rights of noncustodial parents. Ala. Code 30-3-169.3 (2004)

The sheer number of factors that must be considered in relocation cases demonstrates the fact-specific nature of all such determinations. However, despite the sometimes overly long lists of factors devised by the courts or the legislatures, in general these factors can be condensed into four primary categories:

  1. each parent’s motives for seeking or opposing relocation
  2. the potential of the relocation to enhance the quality of life of the child and the custodial parent
  3. the impact of the relocation on the noncustodial parent’s relationship with the child
  4. if relocation is permitted, whether a visitation schedule can be devised that will provide the noncustodial parent a realistic opportunity to maintain a relationship with the child and the likelihood that the custodial parent will comply with this schedule.



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PRESUMPTION IN FAVOR OF RELOCATION -- In many states, such as Arkansas, the court favors allowing relocation of the custodial parent. A majority of states, including New York, decide relocation requests based on the best interest of the child. A few states, such as Connecticut, have a neutral approach, a middle ground approach. Both the custodial parent and the non-custodial parent have the burden of demonstrating why relocation should or should not be permitted.

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