Permission to Relocate Does Not Depend on Employment
By Snyder & Sarno on March 27, 2013
The standards for when a custodial parent is permitted to relocate to a different state with his or her child were originally established and laid out in Baures v. Lewis in 2001. Baures states that, to be granted permission to relocate, the custodial parent must prove that he/she has a good faith reason for the proposed move and that relocation will not be inimical to the child’s interests.
Baures lists 12 factors that a court must take into consideration when deciding on the relocation request, including: the reasons for the move and for the opposition; the history between the parties and how it bears on the reasons each person gives for supporting or opposing the move; whether the child will receive educational, health, and leisure opportunities at least equal to what is available to the child in the current state; the special needs or talents of the child; whether a schedule can be developed that will enable the non-custodial parent to continue a relationship with the child, and the likelihood that the custodial parent will continue to foster that relationship after relocating; the effect the relocation will have on extended family relationships in both locations; the child’s preference (if he/she is of age); whether the child is going to be in his/her senior year in high school, and if so the relocation shall not occur until graduation without consent of the child; whether the non-custodial parent is able to relocate; and any other factor bearing on the child’s interest.
On February 4, 2013, the Ocean County Family Part, in the case Benjamin v. Benjamin, considered whether a custodial parent who filed for relocation must have another job in the new state before relocation is permitted. The court ruled a guaranteed job is not a prerequisite for relocation. Looking at Baures, the court found that guaranteed employment was not explicitly listed in the factors used to decide the relocation issue. The court also found a fundamental problem in requiring the custodial parent to prove a guaranteed offer of employment in the new state because of the amount of time it takes for the court to make a final determination of relocation. It can take many months for the relocation issue to be decided, and employers may not be willing to offer employment and then sit on that offer while waiting to see if the custodial parent will be permitted to move to the new state. For these reasons, the court held that a guaranteed offer of employment is not a requirement for relocation.
The court did find, however, that whether the custodial parent has a reasonable plan for providing the child with a financially stable home in the new state is a relevant factor in deciding whether to permit relocation, and that this was consistent with the final Baures factor as “any other factor bearing on the child’s interest.” The court determined that the custodial parent’s employability and work history are relevant to the overall determination of financial reasonableness of the relocation plan. For example, in Benjamin, many factors were in favor of allowing the custodial parent to relocate, including her long history of steady employment, the fact that she was able to obtain at least one offer from an employer in the new state, her marketable management skills, and her record of responsibly caring for the child financially. Additionally, the custodial parent was married to a man who also brought money into the home and was very employable, as he was a department head in a nationally recognized chain store.
It is important to take away from this very recent decision that although a guaranteed job offer is not required for a custodial parent to relocate, the ability to provide for the child financially in the new state is a relevant factor in determining the relocation question. As is the case for many family law issues, this is a fact sensitive inquiry, and the result will depend on the facts of each case. It is evident, however, that a stable work history and the general employability and likelihood that the custodial parent will obtain a job offer will weigh in favor of granting relocation, as will the presence of other means of financial support, like family members in the new state that are willing to assist financially until the custodial parent finds employment. When seeking relocation, it is important that the custodial parent have a reasonable plan for providing a financially stable home for the child, and that the custodial parent is able to prove this to the court.
If you are a custodial parent looking to relocate, or if you are a non-custodial parent opposing the relocation of your child and you have questions, please call one of our experienced attorneys at Snyder & Sarno, LLC, at (973) 274-5200.
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