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Removal of a Child Out of New Jersey
I have been divorced for five years, and I want to move to another state…
I can't stand New Jersey any longer! What are the requirements that will permit me to move away and escape from New Jersey?
A custodial parent(s) may only relocate 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 the statute 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 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:
Can I move away from New Jersey with the child without obtaining the court's permission?
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.
What do I have to establish to obtain the court's approval to move to another state?
The major case that deals with child removal cases is Baures v. Lewis, 167 N.J. 91 (2001). This is a New Jersey Supreme Court case. This case established what the burden is on the parent who wants to move away from New Jersey. The major point of the landmark Baures case is that it made it significantly easier for a parent to move out of New Jersey with the children in a removal case. The Baures case noted that there was a growing trend in the law easing restrictions on the custodial parent's right to relocate with the children.
The Baures case established the burden that a parent must establish to convince the court to grant a removal application.
In terms of the burden of going forward, the party seeking to move, who has had an opportunity to contemplate the issues, should initially produce evidence to establish prima facie that; (1) there is a good faith reason for the move; and (2) that the move will not be harmful to the child's interest.
If, for some reason, the custodial parent fails to produce evidence on the issues above, then the non-custodial parent will have no duty to go forward and a judgment that denies the removal will be entered.
If the custodial parent does establish a prima facie case, then the court will set the case down for a plenary hearing. At the hearing, the custodial parent must produce evidence that supports the move. Whereas, the non-custodial parent must produce evidence opposing the move as either not in good faith or harmful to the child's interest.
What is the overall guiding principle in a removal case?
At all times in a removal case the guiding principal is what is in the best interests of the children. The court will focus on the question will the child have a better life in New Jersey or in the new state?
When will I get my court date and a plenary hearing?
The custodial parent is entitled to a hearing only after having satisfied the threshold requirements. The court in Baures v. Lewis, 167 N.J. 91 (2001), held that the party seeking to move should initially produce evidence to establish a prima facie case that; (1) there is a good faith reason for the move, and (2) that the move will not be inimical to the child's best interest. If the custodial parent satisfies this burden, then the court will set the case down for a plenary hearing. The courts often refer to this proceeding as a Holder or a Baures hearing.
How are these 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 discuss a discovery deadline. The parties will 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 $3,000 to $5,000 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 complete and the psychologist's expert report is 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 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 are some of the types of proof that I will have to submit to the court in support of my removal application?
The custodial parent who is proposing the move out of New Jersey may want to provide the following information or evidence to the court:
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:
If the divorce is being filed under one of the seven fault grounds (including extreme cruelty, adultery, abandonment, substance or alcohol addiction, institutionalization, deviant sexual conduct and incarceration), the 18 month separation period, required for a no-fault divorce, is waived. However, each ground for divorce has its own stipulations.
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