By Jennifer L. McInerney, Esq.
New Jersey places strict limits upon the ability of a custodial parent to relocate with children outside of its jurisdiction. In fact, the "removal" statute, N.J.S.A. 9:2-2, prohibits the removal of children of divorced or separated parents from the State of New Jersey without Court authorization unless both parents consent, or the children themselves consent if they are deemed old enough.
The Superior Court of New Jersey will have jurisdiction over a "removal" case when the children are natives of this state or have resided here for more than five years. However, even if the children are not natives of New Jersey and have not resided here for five years, the Superior Court may have jurisdiction to decide an application for removal under N.J.S.A. 2A:34-23, which authorizes the Court, after a judgment of divorce, to make such orders as to the care, custody, education, and maintenance of the children as the circumstances of the parties and the nature of the case shall render fit, reasonable, and just.
Additionally, under the Uniform Child Custody Jurisdiction Act, where a child has called the State of New Jersey "home" for a period of more than six months, New Jersey is considered the child's home state. Thus, the New Jersey Courts would have jurisdiction to make custody determinations or modifications that may permit or deny removal. While the "removal" statute provides that a child can consent to his or her own removal from this state upon being "of suitable age," the statute does not define "suitable age."
However, case law in New Jersey provides some guidance in this regard. The Courts have determined that an 8-year-old is not of suitable age, but that attaining the age of 14 is a starting point upon which a child can provide consent. When a child, who is deemed of suitable age, consents to relocation outside of the State of New Jersey, it is not necessary for the Court to make a decision on the issue, thereby obviating the need for a plenary hearing.
At that time, the only determination the Court will be called upon to make is whether the consent of the child is informed, voluntarily given, and without duress or coercion. In the event that the circumstances surrounding the child's consent are questionable, the Court must conduct an interview with the child and hold a plenary hearing. Otherwise, the child will be permitted to leave the state with his or her parent. Similarly, if both parents consent to the removal of the child from New Jersey, the Court is not required to hold a hearing.
However, in the event the non-custodial parent objects to the removal of the child from New Jersey, the Court must hold a plenary hearing, otherwise known as a Holder hearing. The hearing was so coined in light of the Court's ruling in the seminal "removal" case, Holder v. Polanski. In that case, the Court set forth the criteria upon which a custodial parent's application for relocation would be granted.
As a threshold matter, the Court must first determine whether the custodial parent has a good-faith reason to move with the children. Any sincere, good-faith reason will suffice. For instance, moving to live near relatives, seeking new or higher paying employment, or the custodial parent's remarriage will each satisfy the good-faith requirement. It is only when the custodial parent's motive is to thwart or frustrate the non-custodial parent's visitation rights that the Court will deem the custodial parent's request to be in bad faith. Once the Court finds that the custodial parent wants to move for a good-faith reason, it must then consider whether the move will be in the best interest of the children or whether the relocation will adversely affect the visitation rights of the non-custodial parent.
The non-custodial parent has the burden of proving that the effect of removal upon visitation with the children will be harmful to the children. Absent an adverse effect on the children's best interest or the non-custodial parent's visitation rights, the Holder Court held that the custodial parent should enjoy the same freedom of movement as the non-custodial parent.
Previously, the custodial parent was required to show that there would be a real advantage to the move. However, this now comes into play only if the move requires substantial changes in the non-custodial parent's visitation schedule. If the proposed relocation will hinder the current visitation schedule, the custodial parent will then be required to provide proofs concerning the prospective advantages of the move, in conjunction with his or her continued good faith.
It must be noted that not every change in a visitation schedule will adversely affect the non-custodial parent's rights. In fact, the trial court must make findings as to parenting time alternatives which might mitigate against any adverse effect resulting from the inability to maintain exactly the same visitation schedule. For instance, a non-custodial parent may be compensated for missed visitation by enjoying extended visitation with the children during school vacations and the summer.
Additionally, our mobile society, by providing a variety of alternatives in transportation, works to the advantage of both the petitioning, custodial parent and the non-custodial parent in that it is often possible to substantially adhere to the non-custodial parent's visitation schedule.
Accordingly, the successful development of a reasonable visitation plan or the mere adjustment of an existing plan will allow a custodial parent freedom of movement while fostering the non-custodial parent's relationship with the children.
