Should a Custodial Parent Need Court Approval to Move?

These are tough issues with which courts, parents, and mental health professionals have always grappled. Recently, however, courts are faced with these issues more frequently. Psychological data is all over the place as to how children are affected by distant relocations. Significant dialog began with In re Marriage of Burgess, 39 Cal. Rptr. 2d 213 (March, 1995). In that case, Dr. Judith Wallerstein filed an amicus curiae brief emphasizing the role of a primary psychological parent in a child's life. Her findings, explained in her submission to the court, provided guidance to that court and to future courts. It was Dr. Wallerstein's conclusion that a child's best interest is to be relocated with his or her primary psychological (usually custodial) parent even if it means leaving the non-custodial parent behind. According to her, “the effects of frequent and continued contact with the non-custodial parent [are not] central to engender the child's subsequent psychological well-being.” (Vol. 19, 2005 Critical Analysis of Relocation Study). Paraphrasing Dr. Wallerstein: “What is good for the custodial parent is good for the child.” Based in part on her findings, many courts began to establish a presumption in favor of allowing custodial parents to relocate with their children.

Many of her colleagues in the psychological community were, to put it bluntly, unimpressed by Dr. Wallerstein's findings. A common retort was that she “did not qualify her data, precluding meaningful statistical comparisons between different families, children, ages, and gender.” (322 Journal of the American Academy of Matrimonial Lawyers, Vol. 19, 2005). Some in the psychological community speculated that Dr. Wallerstein's research “minimized the importance of the father to a post-divorce child because [her] study was started in the 1970's when fathers saw little of their children following divorce.” [Richard A. Warshak, "Social Science and Children's Best Interest in Relocation Cases: Burgess Revisited," 43 Fam. L.Q. 83 (2000).] Today, according to those critics, we have gender equality and fathers are just as involved in child rearing as are mothers. One critic's research suggested that “quantity, quality and type of involvement of the non-custodial parent with their children were all important to the post-divorced child's well-being.” [Michael E. Lamb, et al. "The Effects of Divorce and Custody Arrangements on Children's Behavior Development and Adjustment," 35 Fam. & Conciliation Cts. Rev. 393 (1977).]

In effect, the camp that gathered on the other side of Dr. Wallerstein argued that a presumption in favor of the relocating parent was not in the best interests of the children because the age of a child affects that child's reaction to leaving one parent behind. An article, “Developmental Issues in Relocation Cases Involving Young Children: When, Whether, and How,” published in the J Fam Psychol, Vol. 17 (2), June, 2003, discusses how the age of a child affects the parent-child relationship.

According to that article, in the first two months of a child's life, frequent interaction between a caregiver and the infant is needed to build “attachment.” A parent will become a stranger if the infant is deprived of regular contact with, and care given by, that parent. From two to seven months of age, babies start to recognize their parents. For attachment to continue, a baby requires frequent contact with her or his parents. If taken away from one parent, such as by consequence of a distance resulting in loss of frequent contact, a baby will lose attachment with the absent, non-custodial parent. A significant attachment phase takes place between seven and 24 months of age. In that time period, if separated from a parent, a child will show visible signs of stress. To sum it up, according to the article, attachments are formed between babies and those people who are regularly available to them and who regularly respond to their signals and needs. Thus, even though children have a preference for the parent who is with them most of the time, the other parent remains emotionally important.

The article goes on to say, “When custodial parents relocate during the third attachment phase, (i.e., between seven and 24 months), the absence of regular social, physical, and emotional interaction weakens or eliminates attachments to non-moving parents, preventing the consolidation and strengthening that normally occur at this stage.” This can cause the child to suffer depression or anxiety.

In the Courts

How do the courts deal with the conflicting theories of how to treat requests by a divorced parent to relocate to a distant place? There is no consistency from state to state. Thirty-seven states have relocation statutes. Some are lengthy and specific, while others are less so. The most controversial issue in relocation is whether there should be a presumption in favor of, or against, relocation. For example, by case law, New Jersey has established a presumption in favor of the custodial parent.

In New Jersey's seminal case on the subject, Baures v. Lewis, 770 A. 2d 214 (N.J. 2001), New Jersey courts are instructed only to ask the custodial parent to make a prima facie showing that the relocation is intended in good faith and that the move would not be inimical to the child's interests. In practice, this is not an onerous showing and most custodial parents are able to establish such a prima facie showing. In response, the non-custodial parent then must show that the requested move is not being undertaken in good faith and that, if permitted, it will harm the child's best interests. This is a much more difficult burden.

Model Relocation of Children Act

So where are we going? The American Bar Association (ABA) has a suggestion. Its Family Law Section has drafted a Model Relocation of Children Act (Model Act). It eliminates presumptions in favor of or against relocation. In its comments, it advises: “In the early years of relocation law, it was common to apply a presumption in favor of allowing the custodial parent to relocate with the child. In more recent years, many states placed the burden of proof on the party seeking to move with the child.”

In crafting the Model Act, the ABA has taken the middle ground by proposing no presumptions in favor of or against relocation. In doing so, its drafting committee followed the view of New York's Court of Appeals, wherein that court held “each relocation request must be considered on its own merits with due consideration of all the relevant facts and circumstances with predominant emphasis being placed on what outcome is most likely to serve the best interest of the child ' .” The Model Act would equalize the burden of proof between the parties. It would provide for applying the “Best Interest Standard” in all relocation matters. This concept in the Model Act follows the New York Court of Appeals' view that “it serves neither the interests of the children nor the ends of justice to view relocation cases through the prisms of presumptions and threshold tests.”

The Model Act defines “relocation” not only as moves to other states, but also moves within the same state of 50 miles or more. That principle looks to the effects of a loss of quality parenting time between a child and her or his non-custodial parent, rather than just at the artificial boundary of a state line. What was obvious to the ABA's drafting panel was that a move by a custodial parent from one end of a state to the other end of the same state can be much more significant than merely crossing a river. For example, under current law, a move of 150 miles entirely in New Jersey can be made without the need for court permission, but to move five miles into New York City does.

Conclusion

Here is the disappointing news. The issue of relocation remains a very difficult, poorly resolved one, and there really is no good solution. Though each case must be viewed individually, with the best interest of the children remaining the primary concern of parents and the courts, serious work must be done to meet the challenges of our changing society. An excellent place to start is by reviewing, commenting upon, criticizing, and pushing for promulgation of the Model Act. As family law practitioners, we are in an excellent position to foster progress in this vital area, and we should do so, individually and collectively. It is the soldiers who fight and win the wars, and we are the soldiers in this battle.

Karen Meislik, a member of this newsletter's Board of Editors, is a principal at Meislik & Meislik, Montclair, NJ.

The world is changing and our courts are playing catch-up. Today, the average American moves about a dozen times over his or her lifetime. Nearly 14% of children under 17 change addresses at least once a year. Where an intact family can rely on itself to adjust to such a transient life, split families often must resort to our courts to iron out their relocation disputes. Thus, with rising mobility, our family courts increasingly are being asked to adjudicate relocation matters. The precedents they rely on, however, are so “last century.”

Will the children suffer from being separated from the non-custodial parent? Are less frequent, but longer duration, visits with the non-custodial parent beneficial or detrimental to a child? How important is the role of the non-custodial parent in a child's development? How important is each parent's role in the emotional development of a child?

Should the Child Go With the Custodial Parent?

These are tough issues with which courts, parents, and mental health professionals have always grappled. Recently, however, courts are faced with these issues more frequently. Psychological data is all over the place as to how children are affected by distant relocations. Significant dialog began with In re Marriage of Burgess, 39 Cal. Rptr. 2d 213 (March, 1995). In that case, Dr. Judith Wallerstein filed an amicus curiae brief emphasizing the role of a primary psychological parent in a child's life. Her findings, explained in her submission to the court, provided guidance to that court and to future courts. It was Dr. Wallerstein's conclusion that a child's best interest is to be relocated with his or her primary psychological (usually custodial) parent even if it means leaving the non-custodial parent behind. According to her, “the effects of frequent and continued contact with the non-custodial parent [are not] central to engender the child's subsequent psychological well-being.” (Vol. 19, 2005 Critical Analysis of Relocation Study). Paraphrasing Dr. Wallerstein: “What is good for the custodial parent is good for the child.” Based in part on her findings, many courts began to establish a presumption in favor of allowing custodial parents to relocate with their children.

Many of her colleagues in the psychological community were, to put it bluntly, unimpressed by Dr. Wallerstein's findings. A common retort was that she “did not qualify her data, precluding meaningful statistical comparisons between different families, children, ages, and gender.” (322 Journal of the American Academy of Matrimonial Lawyers, Vol. 19, 2005). Some in the psychological community speculated that Dr. Wallerstein's research “minimized the importance of the father to a post-divorce child because [her] study was started in the 1970's when fathers saw little of their children following divorce.” [Richard A. Warshak, "Social Science and Children's Best Interest in Relocation Cases: Burgess Revisited," 43 Fam. L.Q. 83 (2000).] Today, according to those critics, we have gender equality and fathers are just as involved in child rearing as are mothers. One critic's research suggested that “quantity, quality and type of involvement of the non-custodial parent with their children were all important to the post-divorced child's well-being.” [Michael E. Lamb, et al. "The Effects of Divorce and Custody Arrangements on Children's Behavior Development and Adjustment," 35 Fam. & Conciliation Cts. Rev. 393 (1977).]

In effect, the camp that gathered on the other side of Dr. Wallerstein argued that a presumption in favor of the relocating parent was not in the best interests of the children because the age of a child affects that child's reaction to leaving one parent behind. An article, “Developmental Issues in Relocation Cases Involving Young Children: When, Whether, and How,” published in the J Fam Psychol, Vol. 17 (2), June, 2003, discusses how the age of a child affects the parent-child relationship.

According to that article, in the first two months of a child's life, frequent interaction between a caregiver and the infant is needed to build “attachment.” A parent will become a stranger if the infant is deprived of regular contact with, and care given by, that parent. From two to seven months of age, babies start to recognize their parents. For attachment to continue, a baby requires frequent contact with her or his parents. If taken away from one parent, such as by consequence of a distance resulting in loss of frequent contact, a baby will lose attachment with the absent, non-custodial parent. A significant attachment phase takes place between seven and 24 months of age. In that time period, if separated from a parent, a child will show visible signs of stress. To sum it up, according to the article, attachments are formed between babies and those people who are regularly available to them and who regularly respond to their signals and needs. Thus, even though children have a preference for the parent who is with them most of the time, the other parent remains emotionally important.

The article goes on to say, “When custodial parents relocate during the third attachment phase, (i.e., between seven and 24 months), the absence of regular social, physical, and emotional interaction weakens or eliminates attachments to non-moving parents, preventing the consolidation and strengthening that normally occur at this stage.” This can cause the child to suffer depression or anxiety.

In the Courts

How do the courts deal with the conflicting theories of how to treat requests by a divorced parent to relocate to a distant place? There is no consistency from state to state. Thirty-seven states have relocation statutes. Some are lengthy and specific, while others are less so. The most controversial issue in relocation is whether there should be a presumption in favor of, or against, relocation. For example, by case law, New Jersey has established a presumption in favor of the custodial parent.

In New Jersey's seminal case on the subject, Baures v. Lewis , 770 A. 2d 214 (N.J. 2001), New Jersey courts are instructed only to ask the custodial parent to make a prima facie showing that the relocation is intended in good faith and that the move would not be inimical to the child's interests. In practice, this is not an onerous showing and most custodial parents are able to establish such a prima facie showing. In response, the non-custodial parent then must show that the requested move is not being undertaken in good faith and that, if permitted, it will harm the child's best interests. This is a much more difficult burden.

Model Relocation of Children Act

So where are we going? The American Bar Association (ABA) has a suggestion. Its Family Law Section has drafted a Model Relocation of Children Act (Model Act). It eliminates presumptions in favor of or against relocation. In its comments, it advises: “In the early years of relocation law, it was common to apply a presumption in favor of allowing the custodial parent to relocate with the child. In more recent years, many states placed the burden of proof on the party seeking to move with the child.”

In crafting the Model Act, the ABA has taken the middle ground by proposing no presumptions in favor of or against relocation. In doing so, its drafting committee followed the view of New York's Court of Appeals, wherein that court held “each relocation request must be considered on its own merits with due consideration of all the relevant facts and circumstances with predominant emphasis being placed on what outcome is most likely to serve the best interest of the child ' .” The Model Act would equalize the burden of proof between the parties. It would provide for applying the “Best Interest Standard” in all relocation matters. This concept in the Model Act follows the New York Court of Appeals' view that “it serves neither the interests of the children nor the ends of justice to view relocation cases through the prisms of presumptions and threshold tests.”

The Model Act defines “relocation” not only as moves to other states, but also moves within the same state of 50 miles or more. That principle looks to the effects of a loss of quality parenting time between a child and her or his non-custodial parent, rather than just at the artificial boundary of a state line. What was obvious to the ABA's drafting panel was that a move by a custodial parent from one end of a state to the other end of the same state can be much more significant than merely crossing a river. For example, under current law, a move of 150 miles entirely in New Jersey can be made without the need for court permission, but to move five miles into New York City does.

Conclusion

Here is the disappointing news. The issue of relocation remains a very difficult, poorly resolved one, and there really is no good solution. Though each case must be viewed individually, with the best interest of the children remaining the primary concern of parents and the courts, serious work must be done to meet the challenges of our changing society. An excellent place to start is by reviewing, commenting upon, criticizing, and pushing for promulgation of the Model Act. As family law practitioners, we are in an excellent position to foster progress in this vital area, and we should do so, individually and collectively. It is the soldiers who fight and win the wars, and we are the soldiers in this battle.

Karen Meislik, a member of this newsletter's Board of Editors, is a principal at Meislik & Meislik, Montclair, NJ.