As an experienced New Jersey divorce attorney, I have seen many couples are naturally excited to move on with their lives once their divorce is finalized. Unfortunately, moving on can be easier said than done, especially when children are involved. After a divorce is finalized people often times find new jobs and begin new relationships. These new chapters in one’s’ life may be joined with the necessity or desire to move out of New Jersey. While couples without children have the luxury of moving wherever they wish after their divorce, a custodial parent with unemancipated children is not automatically afforded such freedom. This is a constant issue that comes up in my practice, whether it be during the actual divorce proceeding, or down the line once a parent finds an opportunity out of state. The question becomes can I just move out of State? Can my ex-spouse stop me? What recourse, if any, do I have?
As a New Jersey divorce lawyer I appreciated that people are free to move wherever they wish after a divorce but children are not. More often than not the parent that is seeking to relocate with the children will not get permission from the other parent to move their children out of state. The reason for this is usually because the move will change the parenting time schedule in effect as well as the relationship the children have with the parent staying in New Jersey. This is not to say that a parent will not be given permission to move out of the State. If your ex-spouse does not consent to you moving out of state with your children you will have to file an application with the Court.
Recently, I represented a client who got engaged and wanted to move about 2.5 hours outside New Jersey with her two younger children. In New Jersey she lived in a small apartment and was struggling to meet her basic expenses, since her ex-husband was thousands and thousands of dollars behind on his child support and alimony obligation. Out of state my client would be living in a large beautiful home, the children would have a large yard to play in and would attend wonderful schools. As usual in cases like this, my client’s ex-husband would not consent to the children moving.
In circumstances where an ex-spouse does not consent to relocation, a party must apply to relocate with the Court. Thus, I filed a Motion on behalf of my client with the Court seeking permission for her to relocate with the minor children.
There is no requirement in New Jersey that relocation cases must be decided by way of a “plenary hearing”, which is similar to a trial. In fact, there is case law stating that a plenary hearing is not necessary in every case where removal of children is at issue. Despite case law, I often find judges will not determine an issue as sensitive as relocation without a hearing, because they want to make sure each side has the opportunity to present their case.
The Court usually looks at two things when determining whether or not to allow a party to move. A custodial parent seeking to remove children has to show (1) a good faith reason for the purported move and (2) that the move would not be inimical to the child’s best interests. Under the case Bauers , this burden is not particularly high. Pursuant to case law a parent can satisfy this burden by showing a desire to be closer to extended family members who can assist with the raising of the child, that the child will have similar educational, health, and leisure opportunities in that new home and a parenting time schedule has been planned to allow the child to maintain a relationship with the non-custodial parent. If a party is able to satisfy this burden, the non-custodial parent must show the purpose of this move is in bad faith and would be detrimental to the child’s best interest.
Additionally, the Court will look at a set of factors in determining whether or not the move will be in the children’s best interests. These factors include, but are not limited to, the reason for the move and the reason given for the opposition.
Upon an analysis of the factors to each case the Court will determine whether or not the custodial parent is allowed to remove the children from the State. After I presented the relevant factors to the Court for my client, she was able to move out of state to be closer to her fiancé. The children continue to see their father in New Jersey and are well adjusted and happy in their new home.
If you have a desire to explore an opportunity out of State and seek to relocate with your children, please call our New Jersey divorce law firm to learn more on how to make your wish a reality.
Thank you to Elizabeth Rozin-Golinder, Esq. for contributing to my firm’s New Jersey Divorce Lawyer Blog.