A Judge’s Guide

RECURRING ISSUES
• The noncustodial parent’s right to continue to have meaningful contact with
his or her child after a divorce.
Most states require the custodial parent to notify the noncustodial parent of the
intent to relocate. If the noncustodial parent does not agree, the custodial parent
must seek the court’s intervention. (It should be noted that noncustodial parents
are free to move at any time without the acquiescence of the custodial parent or
court intervention.) 71 While states generally consider the “best interests of the
child” in deciding whether to permit the move, courts have struggled to give
substance to this language within the difficult context of relocation cases. There is
no single uniform approach to resolving relocation cases, and it is important to
become familiar with the relevant statutes and case law of your particular
jurisdiction when making a decision.
Generally, some states put the burden of proof on the custodial parent seeking the
move to show relocation is in the child’s best interests, 72 while other states put the
burden on the parent opposing the move to demonstrate the move is not in the
child’s best interests. 73 A third, middle-ground approach has evolved, which
allows the relocation of the custodial parent with the child if the custodial parent
has a legitimate reason for the move and the move is consistent with the best
interests of the child. 74 How the child’s best interests are determined varies based
on the relevant statute and the resulting case law interpreting that statute, but
generally requires a balancing approach. One author has noted that “judges and
child custody evaluators need to recognize the risk of those biases [presumptions
for or against the move] and set them aside when reaching conclusions about
whether or not a specific child in a specific family moves with his or her parent.”
Some of the most frequently cited cases involving relocation set forth factors for courts
to consider when deciding a relocation case. In D’Onofrio v. D’Onofrio, 75 the New Jersey
Superior Court set forth five factors to consider:
• Whether the move will improve the quality of life for both the custodial parent and
the child.
• Whether the motives of the relocating, custodial parent are in good faith and not
simply intended to frustrate the noncustodial parent’s visitation.
• Whether the relocating, custodial parent will comply with the new visitation
orders once he or she relocates.
• Whether the noncustodial parent’s motives for opposing the move are in
good faith or simply to avoid paying support.
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