Introduction to Child Relocation Issues
As our society has become increasingly mobile and migratory, the number of relocation cases has continued to expand at an astounding rate. No jurisdiction has escaped the need to address this thorny custody issue and its attendant effects on a child’s relationship with his or her parents. These jurisdictions have recognized the delicate nature of such decisions and have expressed their concern regarding the inherent difficulty in crafting an evenhanded result. The following passage from the New Jersey Supreme Court clearly articulates this concern:
Inevitably, upon objection by a noncustodial parent, there is a clash between the custodial parent’s interest in self-determination and the noncustodial parent’s interest in the companionship of the child. There is rarely an easy answer or even an entirely satisfactory one when a noncustodial parent objects. If the removal is denied, the custodial parent may be embittered by the assault on his or her autonomy. If it is granted, the noncustodial parent may live with the abiding belief that his or her connection to the child has been lost forever. Baures v. Lewis, 167 N.J. 91, 770 A.2d 214, 217 (2001).
The ability of a custodial parent to relocate was last addressed in this publication over eight years ago. See Nadine E. Roddy, Stabilizing Families in a Mobile Society: Recent Case Law on Relocation of the Custodial Parent, 8 Divorce Litigation 141 (August 1996). While the state of relocation law has not dramatically changed in the intervening years, the sheer volume of recent relocation cases warrants the revisiting of this issue. This article will examine recent decisions concerning the relocation of the custodial parent in sole or primary physical custody arrangements as well as the proposed relocation of a parent in cases involving a joint custodial arrangement, including both joint legal custody and joint physical custody. In addition, since this publication last addressed the issue of relocation, there has been a recent trend to apply some type of best-interests-of-the-child standard to resolve relocation disputes. This trend is evident in both recent court decisions as well as state statutes governing a parent’s right to relocate.
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REAL ADVANTAGE THEORY -- The courts apply the logic of what is called the "real advantage" theory, which holds that a move that is good for the parent is good for the child, for example, when it is in conjunction with a career move or a new marriage. The defense for the estranged parent would be to prove to the court the move is more detrimental to the child's future than any advantage gained by the custodial parent.
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