Moving with a Child During or After Divorce in New Jersey

Can one parent relocate with the child(ren) out of state during or after a New Jersey Divorce?

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Parents who don’t live together sometimes have trouble agreeing on the best way to divide time with their children. The challenges are even greater when one parent wants to move a considerable distance away from the other parent’s home.

Child Custody and Visitation in New Jersey

Child custody includes both legal custody, which refers to a parent’s authority to participate in major decisions regarding a child’s health, education, or general welfare, and physical custody, which refers to the child’s actual presence with a parent. Joint legal custody means that parents share major parenting decisions, while joint physical custody means that children live with each parent for nearly equal amounts of time.

Courts in New Jersey base custody decisions primarily on children’s best interests, and courts assume that children benefit from having two involved parents. Joint legal custody is common, but a court will generally order joint physical custody only when both parents are strongly committed to shared parenting.

For more information about child custody and visitation in general, see Child Custody in New Jersey: The Best Interests of the Child, by Susan Bishop.

Move Away Cases

Even the best parenting plans can fall into disarray when one parent decides to move a long distance away from the other parent’s home. New Jersey law requires the parent of a minor child that was born in, or has lived in, the state for at least five years, to get permission (from the other parent or the courts) before moving the child out of state. A move within the state will also require permission if it's far enough away to require a change in an agreed-upon or court-ordered parenting plan. Unless the other parent signs a consent order, the parent who wants to move with the child will have to file a motion (legal paperwork) in superior court.

As our society becomes increasingly mobile, it's more common for families to relocate. At the same time, technological advances have made it easier for parents to keep in touch with children at a distance. Due to these changing circumstances, courts in many states, including New Jersey, will allow a custodial parent to relocate with children in most situations. The decision will hinge on several factors; the most critical factor will be the kind of parenting arrangement currently in effect.

No Custody Orders

If there is no current custody order, a parent who lives with a child can ordinarily take the child on a short trip away from home without worrying about court permission; but any parent who takes a child out of state against the other parent’s wishes risks losing rights in any eventual custody determination. There are exceptions, such as domestic violence or child abuse, which can justify such conduct, but these are rare. If your child has left home with the other parent and you suspect that the parent is not planning to return, consult an attorney as soon as possible to protect your child and your relationship with the child. You may want to obtain a temporary custody order from the court. In an extreme case, you can pursue parental kidnapping charges.

Sole or Primary Physical Custody

A parent with sole or primary physical custody has only to show that a proposed move is in “good faith”—meaning not motivated by a desire to interfere with the other parent’s visitation rights—and that the move won't harm the child. Some acceptable reasons include a new job or better job prospects, a spouse’s job change, or being closer to relatives. The moving parent must also show that the child will have health, educational, and recreational opportunities in the new location that are at least comparable to current opportunities, and must propose a realistic and specific visitation plan that will allow the child frequent contact with the non-custodial parent. Under a typical plan, a child would spend school holidays and most of summer vacation with the non-custodial parent. The plan should also include a reasonable transportation plan and specify ways that the child could stay in touch with the non-custodial parent, such as unlimited phone calls, e-mails, and text or video-messaging.

Once the custodial parent provides a good faith reason for the move and a satisfactory parenting plan, the non-custodial parent can try to show that the move is not really in good faith, that the opportunities for the child in the new location are not as good as in the current location, or that the proposed parenting plan won’t allow the child and the non-custodial parent to maintain a close relationship. This will usually be quite difficult, as current law strongly favors the right of a custodial parent to choose where to live. The non-custodial parent can’t reject the custodial parent’s proposed visitation plan without suggesting possible alternatives.

In addition to the factors discussed above, a court may consider any additional, relevant factors in deciding whether the move would harm the child. These might include:

  • whether the child has any special talents or needs that require accommodations, and whether such accommodations exist in the new location
  • the likelihood that the custodial parent will encourage a relationship between the child and the non-custodial parent
  • the move's potential impact on extended family relationships
  • the child's preferences (if the child is of sufficient age and maturity)
  • whether the child is entering the senior year of high school, and
  • whether the non-custodial parent might be able to relocate.

Joint Legal and Physical Custody

New Jersey courts apply a different standard in cases of true joint custody. The type of custody that will trigger a deeper level of review is not just custody that is shared “on paper,” or for purposes such as child support calculations, but rather actual joint custody that includes equal or nearly equal parenting time and an equal division of day-to-day parenting responsibilities. If the objecting parent proves that this type of custody arrangement exists, the court will approach the case as a request for modification of custody due to a change in circumstances. The court will hold a full hearing on the best interests of the child and appoint one of the parents as the primary custodial parent. The child will then live with the primary custodian, whether that is the moving parent or the parent staying put.

Move-away disputes tend to be time-consuming and expensive. You may need a mental health professional to evaluate the potential effects of the proposed move. If you are in the middle of a dispute about a potential move-away with your child’s other parent, your best option will usually be to negotiate a compromise. If you can’t find any workable compromise, contact an attorney for advice.

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