Child Relocation

By Peter Van Aulen, Esq.

A number of times during my 22 years of Family-Law practice I received calls from prospective clients and they would ask if it was okay for them to move to another state with their children. They would often state that they were planning to leave in a few weeks and they made arrangements for the same. Also, they stated that the children’s noncustodial parent did not approve of said move. Then they asked. “Can I go anyway?” My answer was no. The reason is because New Jersey law prohibits a parent of a child who is separated, divorced, or living separately from the other parent from removing a child who is a native of New Jersey, or who has resided in the state for five or more years, without the consent of the noncustodial parent or a Court Order.

If the non-custodial parent will not consent to the removal, then the custodial parent needs to make an application to the Superior Court for an Order to permit removing the child from the state. The custodial parent must show a good faith reason for the move and that the move will not be contrary to the child’s interest. Once the custodial parent meets this burden, then the burden shifts to the non-custodial parent to demonstrate that the desire to move is being made in bad faith or is contrary to the child’s interest. The Court will consider the following factors in deciding whether to permit the removal:

• The custodial parent’s reasons for the move.
• The reason for the non-custodial parent’s objection to the move.
• The history of the custodial and non-custodial dealings with each other insofar as it relates to the reasons given by each party for desiring or objecting to the move.
• Whether the health, education and recreation opportunities for the child will be equal to what is offered in New Jersey.
• Any particular gifts or needs of the child that necessitate accommodation and if such accommodation is obtainable at the proposed locality.
• If a communication and visitation plan can be created to insure that the non-custodial parent will be able to sustain a substantial and consistent relationship with the child.
• The probability that the custodial parent will promote a relationship between the child and the non-custodial parent at the new location.
• Whether the move will affect any extended family relationships in New Jersey or in the new locality.
• The child’s preference depending on his or her age.
• If the child is starting senior year in high school.
• Whether the non-custodial parent can move to proposed location.
• Any other factor affecting the child’s interest.

The Court does not apply the above said factors in cases where the non-custodial parent shares physical custody or performs the bulk of custodial duties, due to a formal or informal agreement. In those, cases the removal application is treated as a Motion for a Change of Custody and the move will only be allowed if it is found to be in the best interest of the child. This is a more difficult burden for the custodial parent because the Court views his or her move as an attempt to change custody. If you are thinking about relocating a child outside the State of New Jersey, seek legal advice months before the move. Do not wait until the last minute. If the non-custodial parent does not consent to the relocation, the application process in the Courts for permission to relocate could take a few months. Therefore, if you are thinking about relocation call Peter Van Aulen today for a consultation.