To Move or Not to Move – That is the question: What you need to know before relocation with children during separation or divorce

In today’s world, people move for endless reasons: love, work, family, or just for a change. Computer and mobile applications, such as Facetime, Skype, WhatsApp, and Viber, to name just a few, enable more frequent, effective and economical contact with your family and children.  All you need is a device and WIFI, and away you go!  Indeed, if you’re reading this blog article now, it seems life has carried you to New Jersey, where you are now facing challenges related to custody and relocation.

When parties separate, it is common for one party to want to move out of the home, town, or state, often to allow them to be closer to their support system, including family and friends that can help with childcare and/or provide financial support.  If you are thinking about moving with your child, or you think your partner or spouse is preparing to do so, you should immediately seek out the advice of an experienced attorney to ensure that you do not make any of the common mistakes that will put you at a disadvantage in ensuing litigation (should it occur) or that will unduly complicate or impair your future relationship with your child.

The first thing you should know when separating or divorcing is that neither party may leave New Jersey with the child absent the other parent’s consent or a Court Order.  Specifically, N.J.S.A. 9:2-2 states that children “shall not be removed out of [the State] . . . without the consent of both parents, unless the court, upon cause shown, shall otherwise order.”  This restriction is intended to protect each parent’s respective right to maintain a familial relationship with the child. MacKinnon v. MacKinnon, 191 N.J. 240, 248-50 (2007) (citing Cooper v. Cooper, 99 N.J. 42, 50 (1984)).

Against this backdrop, it should come as no great surprise that, under New Jersey law, the parent seeking to leave New Jersey with the child prior to a final custody determination has the burden of demonstrating good cause why it is in the child’s best interests to do so, particularly when that relocation significantly impacts the non-moving parent’s access to the child.  Cooper, supra, 99 N.J. at 50-51.  This is a high burden to overcome, considering New Jersey’s public policy and statute favoring “frequent and continuing contact with both parents.”  N.J.S.A. 9:2-4.

Thus, if you are separating or divorcing and looking to relocate outside of New Jersey with your child, you must first try to obtain the other parent’s consent.  If you cannot obtain the other parent’s consent, you should then file an application with the Court requesting permission to move.  In that application, you must demonstrate to the Court what “good cause” exists that would justify the Court granting your application to move before a custody determination has been made.  The burden is on you, as the moving party.  It is a difficult, but not impossible burden to overcome, and it comes down to the facts and the reasons for your move.  If you move without first obtaining the Court’s permission, you may quickly find yourself moving back to New Jersey if an application is filed, and you risk giving the Judge hearing your case a bad first impression of you, which can be difficult to recover from.

If the other parent has already removed the child from New Jersey without your consent, over your objection, and without a Court order, you should call an attorney as soon as possible to determine if and when to file an application to have the child returned to New Jersey.  The longer the child is outside of New Jersey and outside of your care, the more difficult it may be to persuade a Court to compel the other parent to return with the child.

Certainly, there are pros and cons to every application for relocation that can be filed with the Court.  You should discuss the facts of your case with your attorney to determine whether the particular application makes sense.  Additionally, when facing or contemplating an international move, there are special considerations, such as whether the country of relocation is a party to the Hague Convention on International Child Abduction.

This article is intended to provide some general information to the many parents that are in the process of divorce or separation, but it absolutely cannot replace the advice of knowledgeable counsel.  As noted above, this area of the law is particularly fact-sensitive, and the proper and most prudent course of action can turn on a single fact.  Our firm has handled numerous relocation cases on both sides of the issue, and we are here to help.  If you are separating and divorcing and are facing issues related to relocation, or any other family issue, give us a call today.

–Kali A. Trahanas, Esq.

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