By Evan Weinstein

The COVID-19 pandemic has changed everyone’s lives, causing economic distress and new responsibilities for taking care of family members who may be sick or for children who may no longer have a daycare center to attend. Given these circumstances, some divorced parents will raise the delicate issue of a desire to relocate with his or her children. This request is not only highly emotional for everyone involved, but it also currently faces a very high standard of evidence that the move will in fact be in the best interests of the children. This post examines how New Jersey’s courts currently review relocation matters and considers some of the new child custody factors the pandemic has caused, which may need to be examined by the Court.

The Dilemma of Divorced Parents Seeking to Relocate with Children 

Time and again I have heard from family court judges that the most difficult decisions that they have to rule upon are cases where one parent wants to relocate with their children out of state and the other parent objects to the proposed relocation. It is a true dilemma.

On the one hand, a parent may have a very valid reason for wanting to relocate, such as the pursuit of career advancement or the desire to live closer to their family of origin. And on the other hand, the non-relocating parent has every right to be able to contest the relocation and maintain his or her regular and ongoing parenting time with the children. It is an emotion-filled experience for everyone involved.

New Jersey’s Standard: Is relocation in the best interests of the children?

In the past 30 years, the Supreme Court of New Jersey has flip-flopped back and forth between opinions that make it easier and then harder for the relocating parent to move with the children. Currently, the opinions favor the non-relocating parent who seeks to prevent the relocation of the children. The standard for the Court’s review is a preponderance of the evidence to determine if the relocation is in the best interests of the children. This is a heightened standard that has made it much more of a challenge for the relocating parent.

New Considerations Due to the Pandemic

Of course, the ultimate tragedy of the outbreak is the countless lives we have lost and continue to lose. In addition to our healthcare crisis, the pandemic has created severe economic difficulties for businesses and individuals. In the days before we ever knew of COVID-19, a relocation request would already be so emotionally charged that the parents would likely behave with resentment and animosity.

As family lawyers and advisors to parents, we do our best to limit the acrimony and resolve the relocation dilemma. But in our new society, relocation may be required for a parent to earn a living. The emotions of relocation requests are likely to be much more intense now that the relocation may feel like a parent’s only option to stay financially afloat. We live in an imperfect world with many obstacles to overcome, but the COVID-19 pandemic has created new impediments and urgencies that Courts may need to consider when relocation is requested.

Economic Changes: Should the potential financial gains of a parent’s relocation be considered in the Court’s analysis of the best interests standard?

For many people, the outbreak of COVID-19 has led to job losses. Businesses that were once on solid financial footing have now been forced to make radical changes, and far too many people are without employment or have seen their employment change dramatically. The reality is that many of these people may need to consider moving out of New Jersey to find new employment or better compensation.

For people who are divorced and have children, they cannot just leave with their kids. At the same time, without an income, they cannot financially support themselves or their children. Financial necessity will create a greater demand for relocation. It may be the father or the mother, or it is possible that both parents want to relocate, maybe even to different states, to improve their financial situations.

Is the best interest of the child standard appropriate at this point, when financial hardship is a reality made worse by the evolving impact of the pandemic on careers. Should this real economic hardship be a factor in relocation cases, particularly if the relocation will enable financial gains that will benefit the children? The Courts may be asked to consider the economic changes as part of the best interests of the children standard.

Could a Relocation During the Pandemic Raise Safety Concerns for Traveling Between Homes? 

How the children see their parents matters in a relocation decision, particularly if travel is involved. A long-distance move across the country requires air or train travel when it’s time for visitation with the other parent. A move from Jersey City to Boston, however, could be just a car ride away. In either scenario, the new factor to consider is whether traveling is safe at a time when social distancing is mandatory.

We all are learning to interact differently with one another as a result of the pandemic. Our children are now educated in a virtual setting. We no longer shake hands with colleagues or give hugs to our friends. Socialization with others in our lives is simply different now. We have made adjustments, working hard to remain connected with friends and family and the world around us without leaving our homes.

While nothing can replace being in-person with your child and giving them a tight hug, we can parent our children from a distance apart. The real question now is whether a relocation that requires travel from one parent’s home to another’s is safe for the children. Is it even safe if the parent is the one traveling? These are new problems on multiple levels, and a Court may need to assess safety in deciding upon a relocation request.

In our “New Normal” Does Proximity Impact the Parent-Child Relationship? 

A real difficulty with relocation is that despite the advancements of technology, living in a location four hours away from your child is not the same as living in a home that is 10 minutes away. Children of divorced parents deserve the best parenting they can get from both parents. In many ways, the most meaningful parenting, for both the parent and the child, is done face-to-face and in person. Access to both parents is ideal and provides support more equitably to the child.

The pandemic has of course closed down many of the shared in-person experiences parents have with their children, such as sporting and scholastic events. As a result of the shelter-in-place mandates, in-person time has been replaced by Skype or Facetime calls. How does this new dependence on technology weigh into the reasoning for or against relocation? Does the ability to video chat from any location factor into the assessment of what is in a child’s best interest?

In closing, divorced parents may find themselves in these discussions about relocation, and the considerations about what’s best for a parent and what will be best for a child may align or not. Undoubtedly, courts will be asked to review new factors brought on by the pandemic and its resulting healthcare and economic crises, and to judge with compassion. The question will be how the Courts apply the best interests of the child standard in relocation matters, and whether new factors will carry weight in their decisions.