Relocating with Children After Divorce
by Alicia Hutchinson, Esq. (Marlton, NJ Office)
We live in an increasingly mobile society. According to the U.S. Census Bureau, just short of 36 million people moved between 2012 and 2013. When you do not have children, moving is a relatively simple matter. All the adults involved in the decision consider their options, make the arrangements, and off they go. However, what if you have children and are no longer in a relationship with your co-parent? Can you simply pack up and move to another state?
The short answer is: if you are the custodial parent and you do not have the consent of your co-parent to make the move, you should not take your child out of the state of New Jersey to live in another state or country without getting Court approval to do so prior to moving. Failing to do so puts you at risk of significant sanctions by the Court, which can include such drastic steps as having child support suspended, having a bench warrant issued for your arrest, and a potential loss of physical custody.
The long answer is obviously much more complicated. For the moment, I’ll leave aside the special issues involved when an active duty military custodial parent receives orders for a PCS (Permanent Change of Station) to another installation, or those implicated when a parent wishes to move their child to another country on a permanent basis. We will discuss the most common situation: a custodial parent wishes to move to another U.S. state. In the field, we call this “removal” or “relocation” of the child—because you are “removing” the child from the State of New Jersey and “relocating.” The law is much the same if a non-custodial parent wishes to move the child with them to another state, except the non-custodial parent would also have to file for custody. Much to the envy and frustration of custodial parents throughout the state, there is nothing prohibiting a non-custodial parent from moving without the child.
The first step is consulting with your co-parent to see if they will simply consent to the move. Many times, this can be resolved amicably by the parents without the need for Court involvement—particularly when the move is small enough that parenting time is not affected or can be modified in some way, say by providing for longer summer visits. If your co-parent will not consent to the move, then the next step is to file an application with the Family Division of the Superior Court of New Jersey for a judge to grant you permission to move without your co-parent’s approval. With Court approval, you can safely move your child to the new state without risking sanctions and other legal reprisals by your co-parent.
Courts in the State of New Jersey apply the case of Baures v Lewis 1,67 N.J. 91, 116-17 (2001) when assessing requests to remove a child from the state. There are twelve factors in Baures which the Court will assess, including among many others: the reasons given for the move, the reasons for the opposition to the move, the preference of the child (if they are old enough to give an opinion), the effect of the move on the child’s education, and the effect of the move on the child’s relationships with extended family.
One problem I often see with Baures applications is that people do not file these motions or applications anywhere near early enough. A move may be considered and planned for months or even years, but the potential client often does not come to me to ask about the process of filing for a removal over the objections of their co-parent until mere weeks before the move is planned. Successful Baures applications almost always result in a plenary hearing (a kind of trial before a judge) before approval to move is given, which may be scheduled many weeks after the motion is heard. This can cause expensive and frustrating delay. Also, many of the Baures factors require very specific comparisons of, say, what a child’s educational and enrichment prospects are like in the new state as opposed to where they live in New Jersey.
If you are considering moving with your child to another state, or if your co-parent has informed you of their intent to move despite your objections to their taking your child further away, call us at 856-227-7888 or email [email protected] to schedule a free consultation.
The above is not specific legal advice nor does it create a lawyer-client relationship. Do not rely upon it without consulting an attorney to see how the information presented fits your unique circumstances.