Moving With Your Children Out-Of-State After a Divorce

One of the most contentious issues faced by many divorced parents has always been whether the custodial parent has the right to relocate with the parties’ children out of state. In an increasingly mobile society this has become an issue for many parents. Often custodial parents decide that they cannot continue to reside in New Jersey. They need to explore job opportunities in other states and/or move back to a state where they were raised and may have a family-type support system in place. They may have started a relationship with someone who resides out-of-state or may be contemplating marriage with that person who has an established career in another state. For years, the custodial parent could not permanently remove the children from the state of New Jersey without the written consent of the other party or a court Order. If there was no agreement, the party wishing to move would petition the court for permission. Over the past several decades the standard our Courts have used to make this determination has evolved. For more than 15 years, the standard has been that the prospect of moving the children out of state would be granted unless it was “inimical to the child’s interest.”

Last month, the New Jersey Supreme Court changed the standard that lower courts are to utilize when determining whether or not a custodial parent may relocate the children out of New Jersey. It was also determined that this new standard would apply whether or not the party seeking to move has been the child’s primary residential parent. This ruling represents a significant departure from existing law by changing the standard a court is obligated to interpret. It also gives the noncustodial parent considerably more input and seeks to protect the rights of both parents.

When examining the issue of relocation our courts are now charged with determining whether there is “cause” (to be interpreted under the existing statute) to authorize a child’s relocation out of New Jersey. To do so, courts are now obligated to weigh many factors including, but not limited to: “the parents’ ability to agree, to communicate and cooperate in matters relating to the child; the parents’ willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse; the interaction and relationship of the child with its parents and siblings; the history of domestic violence, if any; the safety of the child and the safety of either parent from physical abuse by the other parent; the preferences of the child when of sufficient age and capacity to reason so as to form an intelligent decision; the needs of the child; the stability of the home environment offered; the quality and continuity of the child’s education; the fitness of the parents’ homes; the extent and quality of the time spent with the child prior to or subsequent to the separation; the parents’ employment responsibilities; and the age and number of children.”

The court found that such a showing of “cause” was required “to preserve the rights of the noncustodial parent and the child to maintain and develop their familial relationship.” Furthermore, in making the determination of “cause” the court must examine the custodial parent’s interest in freedom of movement as qualified by his or her custodial obligation, the State’s interest in protecting the best interests of the child, and the competing interests of the noncustodial parent.”

In conducting their best interest analysis, the Supreme Court has directed the lower courts to consider the position of the parent of primary residence who might have important insights about the current and proposed arrangement that will most effectively serve the child. Of similar importance is the input of the parent of alternate residence who may similarly offer significant information about the child. The court also stated that the views of other adults who have significant relationships with the child may also lend assistance to the Court in making its determination. Lower courts were instructed to consider all of the above in addition to other evidence including documentary evidence, judicial interviews with the child conducted at the court’s discretion and expert testimony. Courts often rely on the expertise of psychologists and other mental health professionals when making these determinations.

This new standard has a great impact on those parents who are either seeking to move out of New Jersey with their children or wish to object to such a request by their former spouse. Each case in this regard is extremely fact sensitive and requires a family lawyer with experience.