By Joseph P. Cadicina, Esq. and Kimberly Gronau, Esq.
The Court has jurisdiction over custody and maintenance of the minor children of divorced or separated parents. Also, if the children are natives of New Jersey or have resided in the state for five years, they shall not be removed out of New Jersey against their own consent, if of suitable age to express same to the Court. However, the consent of both parents will not require the permission of the Court to relocate the child. If a parent does not consent, the parent seeking to relocate must make an application to the Court for permission to relocate the child and the Court will hold a hearing.
The Supreme Court of the State of New Jersey dealt with the issue of relocation in the case of Bauers v. Lewis, 167 N.J. 91 (2001). The Court established various factors to consider in determining whether to grant the custodial parent’s application to remove the child from the jurisdiction over the non-custodial parent’s objection.
- Reasons given for the move;
- Reasons given for opposition;
- Past history of dealings between the parties insofar as it bears on reasons advanced by both parties for supporting and opposing the move;
- Whether child will receive educational, health, and leisure opportunities at least equal to what 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 will develop that will allow a non-custodial parent to maintain a full and continuous relationship with the child;
- Likelihood that the custodial parent will continue to foster child’s relationship with the non-custodial parent if move is allowed
- Effect of move on extended family relationships here and in new location;
- If child is of age, his or her preference;
- Whether 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 non-custodial parent has the ability to relocate;
- An other factor bearing on the child’s interest.
The Court also stated that visitation is not an independent element of proof on the ultimate issue of whether the child’s interest will suffer from the move. Therefore, the custodial parent has the burden of proof to show a good faith reason for the move and that the child will not suffer from it.
Often times, it is necessary for the custodial parent to retain the services of a psychological expert in order to make a recommendation to the Court regarding the best interest of the child. However, it is possible to agree on a joint expert in order to significantly reduce the expense of obtaining an expert and recommendation. However, the danger of utilizing a joint expert is that the parties will be limited to the recommendation of the joint expert. Although the expert’s opinion is not a final determination of the issue regarding the relocation, the expert’s opinion does become a major influence.
Obviously, the issue of relocation must be determined at a hearing whereby the parties and the experts can testify before the Court. Unfortunately, due to the fact that the parties have a right to take discovery and retain experts, the determination of whether or not the custodial parent can relocate usually does not occur until after a hearing. It is not unlikely that several months will pass for the purpose of conducting discovery before a hearing is scheduled. As you can see, the process is not simple nor quick, and it involves a considerable amount of legal and expert fees. For more details regarding relocation, please contact a member of our Family Law Department.
