Removing Children Out of State Following Divorce

can i move out of state with the children?

One thing most of us take for granted is the ability to live anywhere we choose.  Moving can mean uprooting your family, changing your job, or otherwise going on an adventure.  But for those who are divorced or separated, moving out of state with children can also trigger serious legal considerations.

Removal Law in New Jersey 

Removal law is governed by N.J.S.A., 9:2-2, which provides that when the Superior Court has jurisdiction over the custody and maintenance of the minor children of parents divorced, separated, or living apart…they shall not be removed out of its jurisdiction against their own consent, if of suitable age to signify same, nor while under that age without the consent of both parents, unless the court shall otherwise order.

In O’Connor v. O’Connor, 349 N.J. Super. 381, the Court addressed some of the differences between parents that share physical custody (regardless of whether same is “de facto” shared physical custody or court-ordered/agreed to shared physical custody v. where one parent is the parent of primary physical custody and the other parent has secondary or alternate physical custody.

Some of the language in O’Connor includes:

“In a child custody modification context in determining the standard to be applied to a parent’s removal application, the focus of the inquiry is whether the physical custodial relationship among parents is one in which one parent is the ‘primary caretaker’ and the other is the ‘secondary caretaker.’ If so, the removal application must be analyzed in accordance with the criteria outlined in Baures.   (Emphasis Added).

Conversely, in a child custody modification context, if the parents truly share both legal and physical custody then an application by one parent to relocate and remove the residence of the child to an out-of-state location must be analyzed as an application for a change of custody, where the party seeking the change in the joint custoidal relationship must demonstrate that the best interests of the child would be better served by residential custody being primarily vested with the relocating parent.

If one parent is the primary physical custodian, however, then if that parent can demonstrate they are not leaving the state for bad faith reasons, then it is up to the non-relocating parent (non-custodial parent) to prove that the move would be inimical to the children’s best interests. Thus procedurally, the first step of a removal test considers the type of parenting arrangement between the parties.

As the two (2) prong analysis in Baures v. Lewis, 167 N.J. 91 provides: A custodial parent will, absent joint physical custody, be permitted to move if (1) that party has a good faith reason to do so; and (2) the children will not suffer from the move. Baures provides a whopping twelve (12) factors to assist in this analysis.

Thus, procedurally, the first step of the removal test considers the type of parenting arrangement between the parties and whether the matter is actually an application for a change in custody as opposed to a removal case. For example, a removal motion by a party in a case where the children rotate between houses, with each parent assuming full parental responsibility half of the time, is clearly an application to change the custodial status which cannot be maintained from a distance. In contrast, an application by a custodial parent to move away in a case in which the noncustodial parent sees the children once or twice a week and is not seeking to change that state of affairs, is a removal motion. The possible scenarios are limitless; whether the motion should be viewed through the Baures prism or as one for custody will depend on the facts.   In a custody case, the focus is entirely on the child’s best interests. In a removal case, the parents’ interests also take on importance. Morgan v. Morgan 205 N.J. 50.

Let’s imagine a case where the Plaintiff is the parent of primary residence. She is merely seeking relocation to New York, and the Defendant’s parenting time will not be interfered with in any manner. The parties own consent order, signed as part of settlement in a previously disputed paternity case, demonstrates that although they share joint legal custody, it is the Plaintiff who is the parent of primary residence and exercises the majority of time with the child.

The twelve (12) factors in Baures are as follows would include:

(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 What is Available Here;

(5) Any Special Needs or Talents of the Child that Require Accommodation;

(6) Whether a Visitation and Communication Schedule can be Developed that Will Allow the Non-Custodial Parent to Maintain a Full and Continue Relationship;

(7) The Likelihood that the Custodial Parent will Continue to Foster the Child’s Relationship with the Non-Custodial Father;

(8) The Effect of the Move on Extended Family Relationships;

(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;

(11) Whether the noncustodial parent has the ability to relocate;

(12) Any other Factor Bearing on the Child’s Interest.

The Court would view each of these factors in crafting a decision.  Leaving for legitimate reasons such as a change in work or to be close to family will be viewed in a better light than merely a desire to leave the state.

It should be noted that the non-custodial parent may leave the state any time they desire, but doing so would likely open them up to a potential motion to change parenting time.

The law in this area is constantly changing and very fact-sensitive, so it is best to discuss these issues with an attorney before you plan to relocate.

If you would like to schedule a consult with Carl Taylor Law, LLC, please call 908-237-3096.