Relocating outside of NJ
Child relocation rules in NJ are governed by N.J.S.A. 9:2-2, which provides that a child who was born in this State or who has resided within its limits for five years may not be relocated by a parent from the State of NJ, absent the consent of both parents or an order from the court finding sufficient cause to permit such a move. Basically, if a custodial parent wants to move out of the state, the moving parent (custodial parent) must first have consent from the non-moving parent. If the non-moving parent does not consent, then the moving parent must have a court order granting permission. An exception exists if the moving parent is fleeing from immediate risk of physical harm from the other parent or immediate risk of harm to the welfare of the child. However, the moving parent must report the removal and the reason for it within 24 hours to either the Division of Child Protection and Permanency (DCP&P) a.k.a. DYFS 1-877-NJ-ABUSE (652-2873); the county prosecutor’s office; or the local police.
If the moving parent does not follow the above protocol, the non-moving parent may ask the court on an Order to Show Cause (emergency basis) to enter an order prohibiting the custodial parent from moving the child out of NK.
The child relocation rules in NJ mandate that if a moving parent (custodial parent) makes a motion (petition to the court) to remove the child to another state, the moving parent must (1) first show that there is a good faith reason to move and (2) that the move will not be detrimental to the child’s interest. The Court in making a determination of good faith will review the following factors, known as the Baures factors:
•The reasons the custodial parent wants to move;
•The reasons the non-custodial parent wants the child to stay in NJ;
•The past history of court and personal dealings between the parents relevant to their reasons for removal or non-removal;
•The educational, health, and recreational resources available to the child in each state;
•The resources to address any special needs or talents of the child in each state;
•Whether a visitation and communication schedule can be developed that will allow the non-custodial parent to maintain a full and continuous relationship with the child;
•The likelihood that the custodial parent will continue to foster the child’s relationship with the non-custodial parent;
•The effect of the move on extended family relationships here and in the new location;
•The preference of the child;
•Whether the child is entering senior year in high school (if answered in the affirmative, generally child should not be moved);
•Whether the non-custodial parent has the ability to relocate; and
•Any other factor bearing on the child’s interest.
Before taking on the above factors, the court will determine the type of custody and parenting time relationship. If the custody situation is one in which each parent essentially performs an equal caretaking role, the court analyzes the removal application under the stricter change-of-custody test, that is, the party seeking the change in the custodial relationship must demonstrate that the best interests of the child[ren] would be better served by residential custody being vested primarily with the relocating parent.
If, conversely, the physical custodial relationship among the parents is such that one parent serves as the primary caretaker and the other parent the secondary caretaker, then the custodial parent’s request to relocate the children is governed by the two-part test.
In McCoy v. McCoy, 336 N.J. Super. 172 (2001), the pursuit of a better quality of life was accepted as a good faith reason for seeking relocation.
In Mackinnon v. Mackinnon, 191 N.J. 240 (2006), the Supreme Court held that the Baures factors apply when a custodial parent seeks to relocate a child to a foreign nation. The Court reasoned that the Baures factors are sufficiently flexible to accommodate the intricacies of international removal.
In Pfeiffer v. Ilson, 318 N.J. Super. 13 (App. Div. 1999) and Barlock v. Barlock, 383 N.J. Super. 114 (2006), the Court held that a plenary hearing was not necessary in every case where removal of children was at issue.
The moving parent should provide the court a reasonable plan for when and how the child and the non-custodial parent will have parenting time. The plan should consider transportation arrangement and the cost of the transportation. The plan should also include ways of communicating with the noncustodial parent.
The non-custodial parent opposing the move should provide the court with his or her opposing reasons the child should not leave NJ, such as, concerns about the child’s safety, health, education, or general welfare in the other state.
Courts have been cognizant of the increasing mobility of society, finding removal issues more common of pre-divorce and post-divorce conflict between parents, and the subject of frequent motion practice before the Family Part. Generally, these disputes involve enormous tension between the interests of the primary custodial parent and his or her legitimate concerns of employment, educational opportunity, proximity to loved ones and personal well-being and the interests of the non-custodial parent and his or her similarly legitimate concerns of personal fulfillment and in maintaining and nurturing relationships with the children.
If you are contemplating or opposing relocation and have questions about child relocation in NJ, I will provide you with the information you need at your initial free consultation.