Removal: Can I Move Out of New Jersey with my Children?

Removal Applications – Can I Relocate from New Jersey with My Children?

 

In a perfect world, when parents split up, they would continue to live close to one another so the children of the relationship would have easy and frequent access to both parents.  However, in today’s society, that is not always reality.  The world is becoming an increasingly more mobile place.  It is not uncommon for people to relocate in order to take a job that will enhance their careers.  Or for people to enter a new relationship which requires a move.  However, when children are involved, the parent of primary residence (custodial parent) does not have the same liberty that the parent of alternate residence (non-custodial parent) enjoys to move around freely.

 

Under New Jersey law, pursuant to N.J.S.A. 9:2-2, a parent cannot remove a child from the State of New Jersey unless both parents consent, or there is Court order that authorizes it.   This is to help preserve the rights of the non-custodial parent and the child(ren) to maintain their relationship.  However, case law in New Jersey also recognizes that custodial parents have an interest in being able to move freely to seek happiness and fulfillment.  Therefore, there is inherent conflict in any removal/relocation case where the Court must balance these competing interests.

 

 

How do you get authorization from the Court to relocate?

 

If the other parent does not consent to you relocating with the child(ren), you must file an application to the Court (called a Motion) asking permission to do.  The Court will then analyze the facts of your case and determine whether or not to grant your request.

 

What does the Court look at in a removal/relocation application?

 

The first step in a removal/relocation analysis is to determine what type of custodial arrangement exists.  If there is shared legal and shared 50/50 physical custody, without one parent being the primary parent of residence, then such a move is essentially a request to change custody.  As a result, the moving parent must prove the child’s best interests are better served by relocating.  Under normal circumstances, it is not an easy burden to overcome. 

 

If, however, the custodial arrangement is such that one parent is the custodial parent, that acts as the primary caretaker the majority of the time, then a different standard is applied.  In these cases, the moving party has to prove 1) there is a good faith reason for the move (such as a new job opportunity for him/herself or a new spouse, or to be closer to a support network of family and friends, not just to frustrate the other parent’s visitation schedule); and 2) the move will not be inimical to the child’s best interests (that the move will not harm the child).  The moving party shall also include a proposed visitation plan.   Once this burden has been met, it is on the non-custodial parent to present evidence that the move is not in good faith or that the move is inimical to the child’s interests.

 

When assessing whether to order removal, the Court will look to the following factors laid out in Baures v. Lewis, 167 N.J. 91 (2001):

 

♦   Reasons given for the move;

♦   Reasons given for the opposition;

♦   Past history of dealings between the parties insofar as it bears on the reasons advanced by both parties for supporting and opposing the move;

♦   Whether the child will receive educational, health and leisure opportunities at least equal to what is available here;  

♦   Any special needs or talents of the child that require accommodation and whether such accommodation or its equivalent is available in the new location;

♦   Whether a visitation and communication schedule can be developed that will allow the  noncustodial parent to maintain a full and continuous relationship with the child;  

♦   Likelihood that the custodial parent will continue to foster the child’s relationship with the noncustodial parent if the move is allowed;  

♦   Effect of the move on extended family relationships here and in the new location;

♦   Child’s preference (if of appropriate age); 

♦   Whether the child is entering his or her senior year in high school;

♦   Whether the noncustodial parent has the ability to relocate;  

♦   Any other factor regarding the child’s interest.

 

Each removal case is fact-specific and unique.  Most often, once the moving party has met their initial burden of proof,  a plenary hearing (mini-trial) is required to help the judge in making his or her determination. 

 

If you are considering moving from the State of New Jersey with your children, please do not just go ahead and do so without the signed consent of the other parent or a Court order.  It is best to try and speak with the other parent (provided there are no court orders in place prohibiting communication) first to see if you can get signed consent for the move and work out a visitation and communication schedule that helps ensure the parent/child relationship is maintained.  If you are unable to agree, then it is best to consult a family law attorney to help you with your removal application. 

 

Contact Us

Contact The Law Office of Jill Jedrusiak, LLC today to discuss your removal/relocation case.  Ms. Jedrusiak offers a free initial consultation and is happy to meet with you.  Call (732) 719-2202 or visit the website at www.jerseyfamilyattorney.com.