A divorced parent need not have a job lined up in order to move with her child out of state, a state judge held in a ruling approved for publication Monday.
"The most practical and relevant inquiry is not whether the moving parent has a guaranteed job, but rather whether she has a reasonable plan for providing the child in her care with an economically stable home in the new state," Ocean County Superior Court Judge Lawrence Jones said in Benjamin v. Benjamin, FM-15-1212-08-N.
Latifah and Winer Benjamin were divorced in 2008 and agreed to shared custody of their 11-year-old daughter, S.B, with Latifah designated as the primary residential custodian. S.B. lived in an apartment with Latifah, her new husband and his teenage child.
Last May, Latifah filed a postjudgment motion seeking permission to move with the girl to North Carolina, where she intended to buy a home — which she claimed she couldn’t afford to do in New Jersey — and had family with close relationships to S.B.
Winer objected and moved for residential custody. He contended that Latifah might not be able to find work in North Carolina, which would be financially harmful to their daughter. Latifah has worked as an assistant property manager in northern New Jersey for five years, earning about $40,000 annually.
Latifah countered that Winer’s demand was a "Catch-22" because she could not commit to a potential job offer until the court approved the relocation.
After discovery, unsuccessful mandatory mediation and an in-camera interview with S.B., Jones held an Oct. 19 hearing and the same day authorized Latifah’s move.
Jones found "her relocation application to be reasonable, and her employability potential in North Carolina to be very legitimate" and saw "no express, absolute requirement under the law" for a parent to have a promise of a specific job in order to relocate.
Jones said there are "many hypothetical factual scenarios where there would be little practical sense in imposing such an absolute precondition," such as with parents who are homemakers, disabled, independently wealthy or financially supported by a spouse or other family.
Jones said a moving parent’s employability, rather than guarantee of employment, should be considered, along with cost of living, competitiveness of the local job market, potential for job advancement and proximity to family who can provide day care.
But in any case, such a requirement is "highly impractical" because "there is often an unfortunate time gap of many months between the date a custodial parent files a motion for relocation and the date a court can actually adjudicate the matter with finality," Jones said.
"Given the reality of these present economic times, it may be highly unrealistic to expect an employer in another state to offer guaranteed employment to an arms-length job applicant" who lives in New Jersey and can’t say when he or she might be able to start, the judge said, adding that the employer "might have very little incentive to hire this type of applicant over other candidates who are ready, willing, and able to start work immediately."
Jones noted that Latifah had garnered at least one job offer she was unable to accept: an office manager position with an annual salary $2,500 higher than her current pay.
Jones found Latifah "reasonably likely" to find employment in North Carolina, noting her history of stable employment and skills, as well as her husband’s position as a department head for Home Depot.
He also found a good-faith reason for the move, calling Latifah’s apparent desire to buy a home a "very logical and reasonable component of planning for a family’s future economic security."
Woodbury solo Michael Pimpinelli, a family law practitioner and former municipal court judge, calls it a "good, common-sense" ruling that "eliminates the cases where the … court might" condition relocation on a standing job offer.
The opinion provides guidance to judges in typically contentious relocation proceedings. "It’s a hard decision — one of the hardest decisions a judge has to make," Pimpinelli says. "I think judges have a basic inhibition about allowing somebody to more too far away."
Both parents were pro se in the matter. A call to the listed number for Latifah’s Union residence was not returned Monday. There was no listed number for Winer, who resides in Brick.