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How to Fight a New Jersey Removal Case
I have been divorced for five years, and my ex-wife wants to move to another state. Can I block my ex-wife from moving out of New Jersey with my two kids?

In this day and age, it is reality that many people hate to live in New Jersey. In my opinion the major reason why people hate to live here is because of the very high property taxes which are the highest in the United States. These high property taxes simply make it very hard for a middle class person to survive in New Jersey. The rents are inflated because the landlords have to pay these high property taxes. Moreover, in New Jersey a months' worth of property taxes equals or even exceed a monthly mortgage payment for many other U.S. citizens who live in a less expensive state. Therefore, for a newly divorced person the prospect of home ownership is only a far-fetched dream.

Given these harsh realities, once a couple gets a divorce, and they have to obtain separate households, all too often one spouse has to seriously consider moving out of the Garden State. I am stuck in New Jersey, and I am used to it. However, who could blame someone from wanting to leave. Political corruption is rampant all throughout the cities and local towns. No one can control the ever increasing property tax dilemma. Local school boards and teachers who are the main cause of high property taxes all they care about are their salaries, pensions, and health care, and they don't want to make any concessions. Consequently, many people simply can't make it in New Jersey and they are forced to leave.

A custodial parent(s) may only relocate only if he or she has the consent of the former spouse. Alternatively, the relocating spouse must obtain a court order to permit the move. The purpose of this law is to preserve the rights of the non-custodial parent and the child to maintain and develop their familial relationship. This mutual right of the child and the non-custodial parent is usually achieved by means of a parenting plan. Because the removal of the child from the state may seriously affect the parenting schedule of the non-custodial parent, the courts require the custodial parent to show why the move should be permitted.

The custodial parent must show both good faith in making the move and that the relocation will not be contrary to the child's interest. Our Supreme Court in the Baures v. Lewis, 167 N.J. 91 (2001), decision has delineated twelve factors that must be considered to determine whether the custodial parent has proven good faith and that the move will not adversely affect the child's interest. These factors are as follows:

  • The reasons given for the move;
  • The reasons given for the opposition;
  • The past history of dealings between the parties insofar as it bears on the reasons advanced by both parties for supporting and opposing the move;
  • Whether the child will receive educational, health and leisure opportunities at least equal to that is available here;
  • Any special needs or talents of the child that require accommodation and whether such accommodation or its equivalent is available in the new location;
  • Whether a visitation and communication schedule can be developed that will allow the non-custodial parent to maintain a full and continuous relationship with the child;
  • The likelihood that the custodial parent will continue to foster the child's relationship with the non-custodial parent if the move is allowed;
  • The effect of the move on extended family relationships here and in the new location;
  • If the child is of age, his or her preference;
  • 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;
  • Whether the non-custodial parent has the ability to relocate; and
  • Any other factor bearing on the child's interest.

Can my former wife move away from New Jersey with the children without obtaining the court's permission?

Absolutely not. Many divorce litigants are very ignorant about New Jersey's removal laws. The removal of children of parents who are divorced or separated to another state is not permitted without court authorization unless both parents consent. The parents can always mutually agree to permit removal. However, if there is no mutual consent amongst the parties, then New Jersey places strict limits on the ability of a custodial parent to remove the children from New Jersey.

In general, the removal of the children from this State by a custodial parent is governed by N.J.S.A. 9:2-2, which provides in pertinent part:

When the Superior Court has jurisdiction over the custody and maintenance of the minor children of parents divorce, separated or living separate, and such children are natives of this State, or have resided five years within its limits, they shall not be removed out of its jurisdiction ... without the consent of both parents, unless the court upon cause shown, shall otherwise order.

How are removal hearings handled by the courts?

The court will set the removal case down for a case management hearing. At this hearing, the lawyers for the parties will meet with the judge, and the discuss a discovery plan and set any deadlines. The parties will then be ordered to exchange their discovery. The discovery will consist of any proofs that will be submitted at the plenary hearing. Some relevant proofs are a comparison of the school districts, pictures of the new home, information about the new home, a reasonable proposed visitation plan, and psychological reports. Finally, the court will encourage the parties to try to reach an amicable settlement.

In many removal cases, the court will also order that a family psychologist be appointed to prepare an evaluation report. In most cases, the court will order that the parties split the costs of the retainer fee to hire the psychologist. The family psychologist normally charges between $5,000 to $7,500 to prepare a report and to testify at court.

The psychologist will then interview the child, the parents, the extended family members, review all of the school records, and any other relevant evidence. Thereafter, the psychologist will prepare a written report and give his professional opinion as to whether the removal of the child out of New Jersey is in the "best interests of the child."

After the discovery is completed and the psychologist's expert report are submitted, the court will set the case down for a plenary hearing. In some removal cases, the hearing case will be held in one afternoon session. However, in many other removal cases, the hearing can consist of several court sessions. Please keep in mind that the New Jersey family courts are overwhelmed. In many removal cases, a judge may be only able to hear a few hours of testimony even though the parties have been in court waiting all day. The family court judges have many other cases that they have to hear each day. Consequently, it is almost impossible for a family court judge to hear a removal case on a continuous basis. This makes it very difficult for the parties, and it also increases the cost of the litigation. Lawyers always have to charge for their waiting time.

What can I do to stop my-wife from moving away from New Jersey?

The non-custodial parent may want to produce the following proofs and information to the court at any plenary hearing:

  • The reasons given for the opposition to the move;
  • Proof that the moving party can find suitable employment in New Jersey;
  • Proof that the moving party has not permitted a reasonable visitation and/shared parenting plan in the past;
  • Proof that the child will receive better educational, health and leisure opportunities in New Jersey than in the proposed new home state for the child;
  • Any special needs or talents of the child that require accommodation in New Jersey. Moreover, any proof that verifies that such accommodation or its equivalent is not available outside of New Jersey;
  • Proof that a visitation and communication schedule is impossible to develop;
  • Proof that it is impossible for the non-custodial parent to maintain a full and continuous relationship with the child outside of New Jersey;
  • Proof that the custodial parent will not continue to foster the child's relationship with the non-custodial parent if the move is allowed;
  • Proof that it will be impossible for the child to maintain extended family relationships, here and in the new location;
  • If the child is of age, his or her preference to remain in the Garden State;
  • Proof that the child's current school district in New Jersey is superior to the proposed new state's school district;
  • Proof that your former spouse has not complied with the visitation provision of the judgment of divorce or with any other court order regarding visitation;
  • Proof that the child has a bond with extended family members in New Jersey;
  • Proof that it will be impossible for the parent to have a reasonable visitation plan with the child if the removal is granted.

How can I prepare to fight my ex-spouse's removal motion?

To fight a motion for a removal you have to really prepare a strong defense. The best way to defend against a removal case is to prepare your case as thoroughly as possible. The opposing party should try to demonstrate that the moving parent has not thought the matter through carefully, and that the removal is not in the child's best interest. The opposing party will have to prove to the court that the parent seeking to move has not carefully thought out the ramifications of moving. Moreover, you will also have to prove that the moving parent has not fully considered the children's needs. Below are some important areas of proof that must be considered in any removal case.

  • Neighborhood and School. The quality of the schools is a critical factor in any removal case. Some important questions are whether the school districts in the new state are better or comparable to the school districts in New Jersey. All school district are ranked. Therefore, you should obtain any rankings of the school districts and insert them into your moving papers, or use them as evidentiary exhibits at any plenary hearing.
  • Daycare. You should try to provide evidence that the party who proposes the move did not adequately consider or research the available daycare facilities in the new state. You can compare what type of daycare may be available in the new state as compared to what is available in New Jersey. Moreover, you can always argue to the court that if the child moves to another state then your members of your extended family will not be available to babysit or provide their own child care for the children.
  • Employment. Many removal cases are driven by a party who is forced to relocate for job considerations. Moreover, sometimes a remarried party must move because his or her spouse has been transferred or obtained a new job. The critical issue in these types of cases is whether the job transfer or the taking of the new job was critical or even necessary. A party who contests the move should thoroughly research other jobs that are available in New Jersey. Often vocational experts called Qualified Rehabilitative Consultants (QRC's) can provide that data and they may prove to be important witnesses to resisting the relocation.

    In discovery, the party who opposes the removal should seek to obtain information regarding the newly proposed employment position. You should try to obtain any employment contracts or offers, benefit information or brochures. Moreover, in most cases a strong argument can be established that the same types of employment, income or educational opportunities are available right here New Jersey. This type of research can be very time consuming to obtain. However, if the employment evidence is thoroughly prepared, and if it is properly documented, then it can be used to "shoot down" many of the arguments that support a removal case.

    The more empirical data that you obtain about available employment opportunities in New Jersey, as compared to the state where the child may move, then the stronger chance you have of winning your case. The court wants to review hard data. If the parent who proposes the move based on employment considerations can find the same job in New Jersey, then this argument if backed up by strong evidence can undercut many removal cases.
  • Health. If there are any health considerations regarding the move, then these factors should be explored in depth by consulting with physicians. Medical reports and documentation can be critical in a removal case. In some removal cases, the children can't receive comparable medical care if they leave New Jersey. One of the advantages of living in New Jersey is that the health care is highly rated.
  • Ulterior Movies. In many cases, a parent who seeks a removal is primarily concerned with alienating the child from the non-custodial parent. Many ex-wive's who may suffer from the parental alienation syndrome (PAS) move away from New Jersey so as to alienate their ex-husband. It is not obvious that an ex-spouse may suffer from PAS simply because she has filed a removal application. However, any e-mails, telephone messages, or letters that indicate an intent to alienate the children can be critical in your case. If a parent threatens to "take the children away" or makes other similar comments, then these comments can be devastating evidence. It is important to retain letters, e-mails and voice messages that may be used in a later plenary hearing.

If you have been forced to file a motion to enforce your visitation rights, then this motion should be the centerpiece of your case. If there have been any contempt orders that were issued against your ex-spouse, then you should make a poster of it and give it to the court. Moreover, if you had a parenting coordinator, and if your ex-spouse did not cooperate with the parenting coordinator, then this can be crucial evidence in any removal case. If there is evidence that your ex-spouse ignored court orders in the past, then you can argue that there is no proof that he or she will comply with any future court orders. You can paint your ex-spouse as a person who does not respect the court, and that he or she is being manipulative of the system.

I suspect that my ex-wife will be trying to relocate within the next year or so. What I can I do now to build my defense against the relocation of my children?

A common tactic that is often used by a difficult custodial parent is to move out of New Jersey. Consequently, the non-custodial parent will then be separated from the child. For the scheming custodial parent, this has many benefits: it becomes more difficult for the non-custodial parent to exercise visitation. Moreover, it will make it very difficult and more expensive for the non-custodial parent to obtain relief through the family court for any interference with visitation rights. A removal also isolates the child from the non-custodial parent. Thus, the child is much more susceptible to Parental Alienation Syndrome.

It is important to defend against a removal application as vigorously as possible. Don't assume that your ex-spouse will automatically prevail in her removal case. If your ex-spouse wants to relocate to the Philadelphia region or to New York City area, then in my assessment it would be a waste of your time to contest a removal case. Moreover, if the removal application only proposes a move that is within four or five hours from New Jersey, then in the majority of the case the court will permit the removal. The more "Dicey" removal cases are when the custodial parent proposes to move to Florida or to another state that requires air transportation. The key issue any removal case is whether the non-custodial parent can maintain a reasonable parenting plan after the removal. Obviously, the closer the children are, then the easier it will be able to achieve this goal. Therefore, proposed removals to Florida, North Carolina, or other states that require air transportation to get there are much more difficult for a court to decide.

In summary, it is important for you to try to prove that you are very concerned and an involved parent. The more involved that you are with your child's life then the harder it will be for your ex-spouse to convince a court to remove the children out of New Jersey.

What will happen if the court permits the removal?

If the court allows the removal, then in most cases it will require the party who is moving to pay more of the transportation costs related to visitation. The potential travel costs caused by any removal case must be raised as an issue in any plenary hearing. Travel costs are very high in today's world especially now that the cost of gas is $4 a gallon if not more. Moreover, the price of air travel has also skyrocketed based on increased fuel charges, and for heightened security concerns. Information about potential airfare costs should be presented to the court. You should print out the costs of potential airfare from the airline web sites. At least this information will give the court a general idea as to the travel costs that will be incurred if the removal is granted.

There is no standard parenting plan that the court orders if it grants a removal application. Each parenting plan that the court imposes is decided on a case by case basis. However, in a typical removal case non-custodial parent is granted parenting time during the fall break, spring break, Christmas vacation, and during the summer vacation period. Additionally, most courts order the parties to install web-cams on their computers, and to sign up for cable-based phone systems. The courts want to encourage the children to communicate with parent in New Jersey as much as possible.


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