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Can I Move out of State with the Children? Yes and No.

Children who are natives of the State of New Jersey or who have resided in New Jersey for five years may not be removed from the jurisdiction without the consent of both parents or an appropriate Court Order. This law applies to separated or divorcing parents. Past judicial decisions require the custodial parent to demonstrate a benefit to the move before the Court would grant removal. However, more recent decisions have held that in determining whether the custodial parent should be permitted to move from the jurisdiction, emphasis should not be on whether the children or custodial parent would benefit but on whether the children will suffer from it. In a New Jersey Supreme Court decision in 1988 entitled Holder v. Polanski, 11 N.J. 344 (1988), the Court established the following test for removal:

  • The custodial parent must first establish any sincere, good faith reason to move out of State.
  • The Court must then determine whether the move will be inimical to the best interests of the children or adversely affect the visitation rights of the non-custodial parent.
  • If the move will require substantial change in the co-parenting schedule, proofs concerning the prospective advantages of the move, the integrity of motives of the party, and the development of a reasonable co-parenting schedule must be determined.

The Courts are becoming more keen to the right of the custodial parents to move freely within the United States. After all, the non-custodial parent has the freedom to move and why shouldn't the custodial parent have equal rights? The analysis becomes complex because the right of the custodial parent to move will usually affect the non-custodial parent's relationship with the child or children. However, the Courts have now ruled that the loss of the non-custodial parents frequent co-parenting time can be partially salvaged by less frequent co-parenting periods but of longer duration.

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