A parent of primary residence receives great news: after a difficult job search, he orshe has been offered a dream job. There’s just one potential problem–the job would require moving out to California. Removing Children out of State, or “removal” law, is one of the trickier and most emotionally charged aspects of New Jersey family law.
Litigant’s or potential litigant’s may be surprised to learn that the legal procedure is often the same whether one is moving all the way out to California, or simply to Delaware, Pennsylvania or New York. In fact, there can be situations where no notice need be given to move 250 away within New Jersey, but it would not be acceptable to move 55 miles away to a town just over the border in New York.
In this post, I will briefly lay out some of the major issues and concepts involved in New Jersey removal law.
Generally speaking, under N.J.S.A. 9:2-2, children who are “natives” of New Jersey or who
have resided in New Jersey for five (5) years prior to the removal action, may not be removed out of the jurisdiction without: (1) The Consent of both parents, or (2) A valid Court Order.
Parental Consent to Removal
If you need the consent of the parent who does not possess primary residential custody, then perhaps now might be a good time to start buttering him or her up to try and obtain that consent. In all seriousness, however, moving out of state can be a hotly contested issue. The parent of alternate residence has a right to see their child(ren), and it is understandable that he or she might contest having their children taken out of state. The further the move, the harder it will likely be to obtain the consent of the other parent–and also the Court.
Meanwhile, more often than not the parent of primary residence is requesting the move not to alienate the other parent from the children, but rather to pursue a new opportunity. Conversely, if consent is not obtained, the parent of primary residence may begin to feel trapped in New Jersey or even agitated with the parent withholding consent to the move–particularly because the parent of alternate residence does not need to obtain approval prior to moving out of state.
Court Order for Removal
If removal is contested or consent withheld, then the parent of primary residence will likely be forced to file a Motion to move out of New Jersey. It should be noted that the Criminal Code of New Jersey may/will impose sanctions for removing a child from the State without consent or Court approval. Such an act would likely be seen as, at the very least, interference with parenting time/custody. If the child is removed from the country then the potential charges will likely become even more serious. This potential crime can possibly carry with it severe sanctions.
A Court will likely weigh several factors in determining whether to grant a removal outside of New Jersey. The best interests of the child will be the overarching focus of this inquiry, as it is with almost every decision affecting children in New Jersey Family Courts.
The basic initial burden, however, of a parent of primary residence, is to prove that: (1) There is a good faith reason for the move; and (2) The child(ren) will not suffer from the move outside the state of New Jersey.
Thereafter, the burden generally shifts to the parent withholding consent, who must then attempt to prove that the move is not in the child(ren)’s best interests. The Court will weigh several factors in reaching a final determination as to this issue. Among those factors will likely be an analysis with respect to:
- The educational and other opportunities available to the child(ren) following the move (versus the present opportunities);
- The child’s preference (if the child is of an appropriate age to seek such information);
- The ability for the other parent to continue parenting time and a meaningful relationship with the child(ren).
- Any special needs of the child(ren).
- The reasons provided for relocating.
- The reasons provided for opposing/contesting the relocation.
- Other factors relating to the best interests of the parties’ child(ren).
Often times, a plenary hearing will be required following the filing of a Motion to determine the proper outcome of the request to remove the children from the State. Plenary hearings can take months to be scheduled and resolved.
As is always the case with this website/blog, please remember that the above is merely a cursory overview of a specific issue in the law. Every case is fact specific–and laws are always in flux. Accordingly, please seek the advice of an appropriate attorney or other professional before making any decision with respect to your own case or potential case.
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If you’re considering a New Jersey divorce or Family Law action contact me to discuss your options. You can schedule an initial consultation by calling my office at 908-237-3096 or by scheduling your own divorce consultation online by clicking here.