When New Jersey couples divorce, ex-spouses may feel grateful for their newfound freedom from the confines of an unhappy marriage. Among the choices divorced individuals make for themselves are career changes, major lifestyle shifts, and of course decisions about starting new relationships. That said, ex-spouses who share children face challenges when it comes to relocating themselves and their children to a different state.

Required for a New Jersey child’s permanent move out of state: parental consent or a court order

Under New Jersey law, a custodial parent who wants to move a child out-of-state must get the consent of the other parent, or a court order permitting the move.

A consent document should be signed by both parents, notarized, and filed with the Court.

In consenting to an out-of-state permanent move with a child, the other parent has a few options. He or she may seek favorable parenting time, travel, and cost provisions, or may decide to move to the new location to stay close to the child.

Why is the move necessary?

If the other parent refuses consent, parents with primary physical (residential) custody may seek the right to permanently move out-of-state if they can prove to the Court:

• A good faith reason behind this decision, such as a new good job or supportive relatives;
• There is an advantage to the move for the parent seeking removal; and
• The child or children are not “inimically” affected by the move.

The removing parent must also provide the Court with a reasonable plan for when and how the New Jersey parent will maintain contact with the child, both in person and via electronic media, demonstrating the means through which the child will maintain a strong relationship with the non-moving parent.

Role of expert witnesses

Often, expert witnesses become involved for each parent, to demonstrate the degree of harm (or lack of harm) to the child or children, or to prove the good or bad faith of the parent seeking removal or resisting the move.  It is relevant for the Court to consider the ability of the resisting parent to relocate to the area desired by the parent seeking removal.

Objecting to a move

Parents who object to their child’s removal may respond by furnishing reasons to the Court as to why the child should not leave New Jersey. Such reasons may include reasonable concerns about the child’s health, safety, education, and general welfare in the new state.

The resisting parent may seek to demonstrate “inimical harm” to the child, which means harm beyond the ordinary impact of the requested move on the child.  This could include treatment programs in New Jersey that are not available to the child elsewhere, or a tightly bonded relationship between the resisting parent and the child that, if breached, will cause substantial damage to the child.  Such harm, if shown by competent proofs, will defeat the requested move.

Alternatively, the resisting parent may seek compensatory parenting time and electronic media contacts to continue a strong relationship with the child or children.  Sometimes, extended summer vacations with the resisting parent, vacations during the school year, and disproportionate travel expenses imposed on the removing parent will soften the impact.

Role of mediation and other A.D.R.

The New Jersey Supreme Court has mandated that parties in such cases attend mediation before trial, to attempt to narrow the issues and encourage the parties to seek common ground, in the best interests of children.

If that does not work, the trial judge often will bring the parties and their lawyers into court for a last-ditch Intensive Settlement Conference, before the scheduled hearing date.

Plenary hearing

If the parties or one of them may refuse to settle the case, then the Court will hold a hearing to address the issues, and issue a binding decision to grant or deny the removal of a child or children.  If the move is granted, it will be subject to conditions imposed by the Court.  If denied, it means the parent seeking removal either moves without the child (who will remain with the other parent in New Jersey, subject to parenting time conditions) or will remain in the State and forego the move.

Important new law proposed for New Jersey

There are some who believe that the laws governing permanent removal of children from New Jersey are weighted too far in favor of the removing parent.

On November 16 of last year, S. 3252 was introduced in the New Jersey Senate, concerning removal of unemancipated minor children from the State.  The purpose of the bill is to restore reasonable balance between the rights of the parent seeking removal and the parent resisting the move, all in the best interests of the child or children.

Under the proposed law, a parent seeking permission to relocate with a child shall file a motion with the court seeking permission, prior to the relocation, and must remain in New Jersey with the child unless and until that parent receives permission to relocate.

Under current law, a parent seeking relocation may petition the Court for permission to relocate even before a hearing is held.  Our law firm recently represented a parent resisting a proposed permanent removal of a child to a different state, where the trial judge granted the removing parent permission to move, before hearing a single witness, reading a single expert’s report, or considering any evidence in the case.  The proposed law would eliminate that practice.

Under the new law, the parent seeking to relocate with a child must specify the reasons for the proposed relocation and a proposed revised parenting time schedule with the child. The burden of proof shall be on the parent seeking to relocate to prove, by a preponderance of the evidence, that the relocation is in the best interest of the child and will not unreasonably adversely impact the relationship between the child and the non-relocating parent.  A parent who objects to a proposed relocation of a child or a revised parenting plan may file a motion or cross motion objecting to the relocation for specific reasons stated.

Under the new law, there would be no presumption in favor of or against relocation, but the Court would have to make its decision (or the parties negotiate their private settlement) based on the following factors:

1. The right of the child to maintain personal relations and direct contact with both parents on a regular basis in a manner 36 consistent with the child’s development, except if the contact is  contrary to the child’s best interests;
2. The views of the child regarding relocation if the child is of appropriate age and maturity;
3. The parties’ proposals for the practical arrangements for relocation, including accommodation, schooling, and employment;
4. The reasons for seeking or opposing relocation;
5. Any history of domestic violence or abuse, whether physical or psychological;
6. The history of the family and particularly the continuity and quality of past and current care and contact arrangements, including any prior relocation;
7. Pre-existing custody and parenting time determinations;
8. The impact of granting or refusing relocation of the child, paying particular attention to the child’s extended family, education, and social life;
9. The nature of the inter-parental relationships and the commitment of the applicant to support and facilitate the  relationship between the child and the noncustodial parent after relocation;
10. Whether the parties’ proposals for parenting time after  relocation are realistic, with particular attention given to the cost to the family and the burden to the child;
11. The enforceability of parenting time provisions ordered as a condition of relocation in the state of destination;
12. The issues of mobility for family members, both seeking and opposing relocation;
13. The economic impact of relocation on both parents;
14. Any special medical, mental or educational needs of the child and the likelihood that those needs can be met at the same or better level in the state of destination than in the state of New Jersey; and
15. Any other factor as the court may deem relevant under the 21 circumstances.

The trial judge would have the following remedies available in child removal cases, upon hearing and decision:

1. Permit or prohibit the removal application on a temporary or permanent basis after a fact-finding plenary hearing;
2. Order the return of a child who was removed without authorization of the court;
3. Modify custody or parenting time in accordance with law;
4. Order either party to provide reasonable financial security to guarantee the return of the child;
5. Allocate the reasonable actual or projected costs incurred by the noncustodial parent to exercise parenting time with the child;
6. Allocate payment of attorneys’ fees and costs, and any experts’ fees and costs between the parties;
7. Appoint an expert as may be appropriate;
8. h. Allocate transportation costs or modify child support; and
9. Provide such other relief as the court may deem just and equitable under the circumstances.

Conclusion

Whether or not the pending Senate bill is signed into law, it should be clear that the issues of child custody, parenting time, and post-judgment out-of-state relocation with a minor child or children are complex and fraught with danger for both parents.  No one should face these issues without the assistance of experienced legal counsel, who are knowledgeable about the law, compassionate, yet tough advocates for parents and children in these circumstances.  We urge you to call or write us today to discuss your concerns.  We will review the facts with you, research the law, and give you an opinion as to the likelihood of success in your matter.  We will present your options, and give you a clear pathway to move forward.  Give us a chance to help you achieve outcomes that are just and reasonable for your children and you.  We will be happy to serve your legal needs.