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If a non-custodial parent moves closer to their child, can that parent seek a modification of their custody and parenting time schedule?

When a parent seeks a modification in their custody and parenting time arrangement, the Court focuses on two components:

1) whether there is a change in circumstance warranting a modification of the schedule; and
2) whether it is in the child’s best interests to modify the schedule.

In the recent unpublished Appellate Division case of J.C. v. J.B., the Appellate Division addressed whether one parent’s move to be closer to their child can be considered a change in circumstance.   In that case, the parties were divorced in July of 2014 and then moved to different towns, which were ninety minutes apart from each other.  Approximately five years after the divorce, the parties’ child was going into first grade and mother was concerned about the parenting time arrangement.  To address the mother’s concerns, the father relocated to the same town as the mother.  As a result, the Court found that the father’s move to the mother’s town was a change in circumstance and, based on the best interests of the child, increased the father’s parenting time.

Based on this recent case, a move closer to your child can certainly be viewed by the Court as a change in circumstance.  However, the Court still needs to determine whether it is in the child’s best interests to modify such schedule.  

In order to decide if a schedule change is in the best interests of the child, the Court will consider the following factors:

  1. The parents’ ability to agree, communicate and cooperate in matters relating to the child
  2. The parents’ willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse;
  3. The interaction and relationship of the child with its parents and siblings;
  4. The history of domestic violence, if any;
  5. The safety of the child and the safety of either parent from physical abuse by the other parent;
  6. The preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision;
  7. The needs of the child;
  8. The stability of the home environment offered;
  9. The quality and continuity of the child’s education;
  10. The fitness of the parents;
  11. The geographical proximity of the parents’ homes;
  12. The extent and quality of the time spent with the child prior to or subsequent to the separation;
  13. The parents’ employment responsibilities; and
  14. The age and number of children.

There is no straight forward answer in these cases. The Court will use these factors to make a decision based on the unique facts of each case. 

If you have any questions related to custody and parenting time modifications, please call Townsend, Tomaio & Newmark to speak with an experienced attorney to guide you through this process.

By Kevin W. Ku, Esq.