So you want to move out of NJ with your child and aren’t sure what steps you need to take?
You’ve come to the right place. Many people assume that just because they have sole legal custody or are the parent of primary residence, they can move out of State with their child. That’s not true! Regardless of whether you have sole or joint custody or you are the parent of primary residence, before you move out of NJ with the child, you must get either the other parent’s permission or a Court order. If the other parent agrees, you should memorialize that in writing to prevent any future arguments and that parent dragging you into court and alleging that they never gave you permission to move out of State with the child.
What if that parent won’t agree and you have to go to Court?
In order for the Court to allow you to move out of State, the Court must determine that it is in your child’s best interest to relocate. In order to show the Court that the move would be in your child’s best interest, there are a number of factors the Court considers. These factors were established in a case called Baures v. Lewis. You can download those factors here. The parent requesting to move has the burden of proving to the Court that those factors are satisfied.
First, the reasons given for the move.
The reason given for the move must be a valid reason. It should not simply be because you want to move somewhere warmer (which I could totally understand since it is currently 14 degrees here in NJ!). Examples of valid reasons are: 1) a better job opportunity; 2) a move to be closer to extended family; 3) a move to be closer to college/graduate program. Those are the types of situations where the Court will believe your reason for the move is genuine. Examples of weak reasons for the move are: 1) you just want to get away from the other parent; 2) you are moving to be with a new boyfriend/girlfriend; or 3) you are running from the law.
Second, the reasons given for the opposition.
This requires that the other parent have valid reasons for opposing your request to move. For example, if the other parent has never seen the child in their life and the child is 10 years old, the other parent’s bare refusal to agree to let you move would not be a strong opposition. On the other hand, if the other parent has been involved in your child’s life and has always exercised a relationship with your child and is concerned that the move would negatively impact that relationship and create an obstacle to maintaining that relationship, that would be a strong reason to oppose the move.
Third, the past history of dealings between the parties as it relates to the reasons for and opposition given for the move.
If you 2 have frequently been in court for custody and parenting time, the Court will consider that. For example, if dad is frequently taking you to Court because you are not allowing him to see your child, the Court is not going to be very willing to allow you to move out of State given the way you have acted while in the same state. And vice versa.
Fourth, the educational, health and leisure activities available in the new state.
The Court wants to ensure that the child will have at least the same, if not better, opportunities in the new state. For example, if your child is in a top notch school here in NJ but the school in the new state would be average or below average, that is something the Court would consider.
Fifth, any special needs of the child that require accommodation and whether that accommodation is available in the new state.
If your child is special needs or requires educational assistance and has an IEP here in NJ but would not be able to receive that same level of services in the new state, that is a factor that would not weigh in your favor.
Sixth, whether a parenting time schedule and communication schedule can be developed to allow the the non-custodial parent to maintain a full and close relationship with the child.
You should know that as the parent seeking to move out of state, you would bear most, if not all, of the transportation expenses to ensure that the child is able to maintain a relationship with the other parent. For example, if the Court allows you to move to California and the plane ticket for your child to visit the other parent in NJ is $1,000.00, you would likely be responsible for that entire cost. You may not think it’s fair but the Court looks at it this way: you chose (even if for good reason) to move out of State and its not fair for the other parent to incur any additional costs as a result of your move. Many people hurt themselves when they go to Court and are not financially able or are simply unwilling to agree to a parenting time plan so that the other parent can speak with and visit with the child.
Seventh, the likelihood that the custodial parent will continue to foster a relationship with the non-custodial parent.
This factor is tied closely to whether the parent, if permitted to move, could offer a sufficient parenting time and communication schedule to prevent any loss or deterioration of the relationship between the child and the non-custodial parent.
Eighth, the effect of the move on the extended family.
If you are seeking to move to a State and you do not have any family or friends there but you have a lot of extended family here in NJ, that is something the Court will consider and that may weigh negatively in your favor. On the other hand, if you do not have family in NJ but are seeking to move to NC where all of your family resides, that is something that may weigh positively in your favor.
Ninth, if the child is of age, his or her preference.
The Courts will take into consideration the preference of the child when they are of sufficient age. Sufficient age typically includes teenagers and pre-teens but many judges will speak with children as young as 10. The Courts will typically not speak with children younger than 10.
Tenth, whether the child is entering his or her senior year in high school
At which point he or she should generally not be moved until graduation without his or her consent. The Courts do not like to move children in the middle of a school year, especially their senior year of high school. Unless the Court determines you have an extremely strong reason for the move, if you are attempting to move during your child’s senior year, the Court would likely deny your request.
Eleventh, whether the noncustodial parent has the ability to relocate
The Courts consider whether the parent opposing the move has the ability to relocate. Most times the answer to this question is no but it is something that the Court will consider.
Twelfth, any other factor bearing on the child’s best interest.
The Court’s goal with the consideration of these factors is to determine what is in the child’s best interest, which is the overarching goal and standard that the Court seeks to achieve in all cases involving custody, parenting time and relocation of children.
I represent parents in relocation applications and if you would like to schedule an appointment with me, please click here.
The contents on this blog entry are provided for informational purposes only. You should consult with an attorney to determine how the law applies to the facts of your particular case.