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Parental Relocation

Some of the most difficult cases in family law involve those wherein the custodial parent decides to leave the State of New Jersey with his or her children. The non-custodial parent is suddenly faced with a situation that may significantly changer his or her contact and relationship with the children. Ultimately, the court is put in a very difficult situation wherein it must decide whether to let the custodial parent leave with the children or to not permit that parent to leave so that the non-custodial parent’s relationship remains unchanged.

According to New Jersey statute, the “minor children of parents divorced, separated or living separate . . . shall not be removed out of its jurisdiction . . . without the consent of both parents, unless the court, upon cause shown, shall otherwise order.” Therefore, before a custodial parent relocates out of New Jersey with one or more children, she must gain the consent of the non-custodial parent. If the non-custodial parent objects to the relocation, the custodial parent must make the appropriate application with the court and convince the court that she should be able to relocate with the children over the non-custodial parent’s objection.

In the case wherein the non-custodial parent has a typical parenting time schedule (e.g., every other weekend and an overnight with the children during the week), the court must determine whether (1) the custodial parent seeking removal must have a “good faith” reason for relocating; and (2) that the move will not be inimical or harmful to the children’s best interests.

The initial burden of the moving party to show a “good faith” reason to relocate can be met by the custodial parent in a number of ways. For example, she may show that she is seeking to move closer to a large extended family that can help her raise the children or that she is seeking a better job or career advancement. In order to show that the move will not be harmful to the children involved, the custodial parent can satisfy this burden by showing that the children will have equal or better educational, health and leisure opportunities to that which is available in New Jersey. If the custodial parent proves that she is making the move for a good faith reason and that the move is not adverse to the children’s best interests, the non-custodial parent can oppose the move as either not in good faith or inimical to the children’s best interests.

The court is also supposed to consider other factors in assessing whether the custodial parent has proven that he or she has a good faith reason to move and that the move will not be inimical to the children’s interests. Among those factors are the following:

  • The reasons given for the move;
  • The reasons given for the opposition;
  • Whether the child will receive educational, health and leisure opportunities at least equal to what is available in New Jersey;
  • Any special needs or talents of the child that require accommodation and whether those accommodations are available in the new location;
  • Whether a visitation schedule can be developed that will allow the non-custodial parent to maintain a full and continuous relationship with the child;
  • The likelihood that the custodial parent will continue to foster the children’s relationship with the non-custodial parent if the move is allowed;
  • The effect of the move on extended family relationships;
  • Preference of the child, if the child is of age;
  • Whether the non-custodial parent has the ability to relocate.

Not all factors will be relevant and of equal weight in every case. For example, in a case in which the parties have no extended family in either location, that factor will not be considered.

Ultimately, the court will make a determination as to whether the custodial parent can relocate with the children. If the custodial parent is permitted to leave with the children, the court will enter a new visitation schedule for the non-custodial parent. If the custodial parent’s request to relocate is denied, he or she may still move, but may not do so with the children.

For those cases wherein both parents equally share parenting time with the children, a different standard is used. Since no parent is technically the “custodial parent,” each parent is on more of a level playing field and a custody hearing will have to be scheduled to determine who shall have custody of the children in the future. The court will ultimately have to determine whether it is in the best interests of the child to go with the parent moving out of state or to remain in New Jersey with the parent remaining here.

If you are considering relocating out of New Jersey with your children, it is important that you contact an attorney immediately. These types of cases can take as long as six months before the court makes a decision. Therefore, if time is an issue in your matter, it is important to start your case immediately. If you are a non-custodial parent and the custodial parent of your children has filed an application for relocation, it is equally important that you contact an attorney right away so that you can begin to prepare a legal strategy for opposing the application. At Donahue, Hagan, Klein & Weisberg, LLC, we have extensive experience in handling both sides of relocations matters. We will do our best to make sure that your position, whether it is for relocation or against, is presented and argued before the court with all of the care and passion that it deserves.