Post-judgment of divorce client to lawyer: “I want to move my kids out of New Jersey with me. Can I do it? What about to another country?”

The U.S. economic downturn has made it difficult for many people to keep their jobs or even find a new job. During or after a divorce, one parent may be job relocated or have to find new employment out of state. What happens when the custodial parent wants to move? Per New Jersey Statute 9:2-2, if the relocating parent wants to move to another state or country, s/he must obtain the non-custodial parent’s permission. If the non-custodial parent won’t agree because the proposed move will inhibit or destroy parenting time, then the relocating parent must obtain court approval or risk leaving the children behind.

If the non-custodial parent objects to the relocation, the parties should seek the help of a professional mediator first, before commencing court action. There is a practical reason for choosing mediation: the court system will mandate it anyway, before considering the matter. If mediation does not work, then a Family Part judge will have to make the call, after a full adversarial hearing, probably including expert witnesses. Since 2009, the parties also have the option of hiring a private arbitrator to make the decision, which represents a major change in the law. Fawzy v. Fawzy, 199 N.J. 456 (1999). Most such cases continue to go before the courts, however.

At hearing, the judge (or arbitrator) will consider the following factors under Baures v. Lewis, 167 N.J. 91 (2001):

1.) What are the custodial parent’s reasons for the relocation?

2.) What are the non-custodial parent’s reasons for the opposition?

3.) Is there a past history between the parties that bears on the reasons for and against the move?

4.) Will the child receive comparable educational, health, and leisure opportunities?

5.) Are there any special needs or talents of the child that require accommodations? Are such accommodations available in the new location?

6.) Can a visitation and communication schedule be developed that will allow the noncustodial parent to maintain a full and continuous relationship with the child?

7.) What is the likelihood that the custodial parent will continue to foster the relationship of the child with the noncustodial parent?

8.) Is there an effect of the move on extended family relationships? If the child is of age, what is his or her preference?

9.) Is the child entering senior year in high school? Is it necessary for the moving parent to relocate for work issues?

10.) Does the noncustodial parent have the ability to relocate? Are there any other factors bearing on the child’s interest?

The relocating parent has the burden of proving a good faith reason for the move and that the child will not suffer because of the move. If the relocating parent proves a good faith reason for the move, then the opposing parent must prove that the move would be inimical to the child, which is a difficult burden to meet. While the specific results will change from case to case, depending upon the facts, in many cases the trial judge will permit the primary custodial parent to move with the children, while conditioning the children’s relocation upon reasonable continuing contacts between the children and the non-custodial parent. These continuing contacts will include, at a minimum, a telephone schedule, Skype access, periodic visits, and extended summers, with part or all of the costs of transportation to be borne by the moving parent.

From the perspective of the resisting parent, in addition to negotiating or litigating for continuing contacts, there are two other strategic considerations:

• 1. In appropriate cases, s/he can fight for primary custody. If the resisting parent succeeds, then the entire dynamic of the case shifts. The former primary custodian now has no “edge” in removing the children, and may have to settle for moving without them – subject to continuing contacts, as described above.
• 2. When possible, consider moving to the new location, out of state or out of country, to remain close to the children. This is an optimal solution, but can only succeed when the non-custodial parent is self employed, can transfer within a company, or can get employment in the new location.

Whether you are the parent seeking relocation or the one opposing it, you must be aware of your legal rights and be prepared to protect your children and yourself. If you have any questions regarding custody, parenting time, or child relocation law, make sure to speak with the experts. Contact lawyers with a track record in matrimonial law practice and strongly consider their advice. You will be glad that you did.