In the recent decision of Benjamin v. Benjamin, the court held that it is not a mandatory prerequisite for a parent to have a guaranteed job to prevail in a relocation application. Rather, the court must evaluate whether there is a “likelihood that the custodial parent can provide the child with a financially stable household in the new state, including employment as necessary.” The court reached this decision based on application of the standard established in Baures v. Lewis.
In Baures, the New Jersey Supreme Court clarified the standard and burden of proof applicable to an application by a custodial parent to relocate outside of the state of New Jersey. Beginning with an analysis of N.J.S.A. 9:2-2, which precludes removal of a child “without the consent of both parents, unless the court, upon cause shown, shall otherwise order,” the Court discussed the progression of case law in evaluating the “cause” provision of the statute. The Court first examined Cooper v. Cooper, in which the Court established a requirement that a parent show a “real advantage” to the relocation, and noted the Cooper Court’s reasoning that “[t]he custodial parent who bears the burden and responsibility for the child is entitled, to the greatest possible extent, to the same freedom to seek a better life for herself or himself and the children as enjoyed by the noncustodial parent.”6 The Court next considered Holder v. Polanski,7 in which the Court held that the real advantage test was too great a burden on the custodial parent and that “any sincere, good-faith reason will suffice.”
Originally published in the November 2013 issue of New Jersey Family Lawyer.
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