Oct
1
Can Your Ex Move Your Children Out of New Jersey?
Filed Under Child Custody & Visitation, Family Law Basics, Father's Rights in Family Law
This recent post on the Missouri Divorce & Family Law Blog on removal of minor children out of state prompted me to post on the same subject as it relates to New Jersey law.
As it always the case regarding minor children, the courts are concerned with the best interests of the child. The New Jersey statute governing removal of minor children, specifically N.J.S.A. 9:2-2, is there to preserve the rights of the non-custodial parent and his/her child to develop and maintain their familial relationship. Absent a consensual agreement between the parents, the relocating spouse must obtain a court order to permit the move.
Because moving out of state will significantly impact the parenting schedule and may possibly negatively affect that relationship, the courts place the burden on the custodial parent to demonstrate why the move should be permitted. To succeed on their bid to move out of state, the relocating spouse must show that (1) there is a good faith reason for the move and (2) that the relocation will not be contrary to the child’s best interests.
To that end, the New Jersey Supreme Court has set forth 12 factors that must be considered when determining whether the relocating parent will succeed on that bid. The 12 factors are:
1. The reasons given for the move;
2. The reasons given for the opposition;
3. The past history of dealings between the parties insofar as it bears on the reasons advanced by both parties for supporting and opposing the move;
4. Whether the child will receive educational, health, and leisure opportunities at least equal to that which is available here;
5. Any special needs or talents of the child that require accommodation and whether such accommodation or its equivalent is available in the new location;
6. Whether a visitation and communication schedule can be developed that will allow the non-custodial parent to maintain a full and continuous relationship with the child;
7. The likelihood that the custodial parent will continue to foster the child’s relationship with the non-custodial parent if the move is allowed;
8. The effect of the move on extended family relationships here and in the new location;
9. If the child is of age, his or her preference;
10. Whether the child is entering his or her senior year in high school, at which point he or she should generally not be moved until graduation without his or her consent;
11. Whether the non-custodial parent has the ability to relocate; and
12. Any other factor bearing on the child’s interest.
In the past, there was a presumption that moving out of state would cause major harm to the children and winning removal cases was very hard for relocating parents to do. Recently, the New Jersey Supreme Court made it significantly easier for a parent to move out of New Jersey when they decided Baures v. Lewis. The Court noted that there was a growing trend in the law easing restrictions on the custodial parent’s right to relocate with the children.
If the relocating parent can make a prima facie case of meeting the minimum threshold to being granted permission to move the children out of state, a plenary hearing will be held where both parties can make their case.
If you get wind that your ex is looking to leave the state, or if you, as the custodial parent, are looking to move out of state with the children, the best thing you can do is retain the services of a competent family law attorney.
Posted by Victor J. Medina
Medina, Martinez & Castroll, LLC
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