Arons and Solomon | October 30, 2018 | Articles
Life goes on after a divorce, and sometimes it requires the custodial parent to relocate to another town or state. Maybe the parent found a new job or decided to move in with a new partner. Whatever the reason, parental relocation can have a big impact on your custody arrangement.
Moving Within New Jersey
Relocations within New Jersey are usually negotiated and settled between both parties or approved by the court. If the distance of the new home is far enough to prevent the family from following the parenting plan, it may require either consent from both parents, or a court order.
Moving Out of New Jersey
Moving children out-of-state always requires either consent from both parents, or a court order. There is no way around this requirement. If the child is old enough to consent or object to the move, the court will also consider the will of the child.
According to NJ Rev Stat § 9:2-2 (2013):
When the Superior Court has jurisdiction over the custody and maintenance of the minor children of parents divorced, 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 against their own consent, if of suitable age to signify the same, nor while under that age without the consent of both parents, unless the court, upon cause shown, shall otherwise order. The court, upon application of any person in behalf of such minors, may require such security and issue such writs and processes as shall be deemed proper to effect the purposes of this section.
If both parents approve of the move, the noncustodial parent will have to sign a consent order. If one parent objects to the move, the custodial parent will have to file a motion for a plenary hearing, and the case will be taken to court.
If possible, co-parents can negotiate an arrangement outside of court. This alternative approach can save both parties a lot of time, stress, and money.
Parental Relocation Laws Have Changed in New Jersey
In 2017, the New Jersey Supreme Court reversed nearly 20 years of case law regarding parental relocation. The case, Bisbing v. Bisbing, involved a father trying to stop his ex-wife from moving to Utah with their two daughters. The couple had been divorced for a year and the ex-wife had primary custody.
Before Bisbing v. Bisbing, the courts required the custodial parent to demonstrate two things:
- The move was being made in “good faith”
- The move will not harm the child
The courts also required the custodial parent to propose a plan allowing children regular visitation and contact with the other parent in the event of a move.
In the Bisbing v. Bisbing case, the New Jersey Supreme Court decided these criteria were not enough. The justices ruled the custodial parent must go a step further to provide evidence the relocation would be in the “best interest of the child.”
This decision made waves in the family law community because it shifted the burden of proof to the parent seeking the move. New Jersey courts now operate under the assumption that children benefit from both parents playing an active role in their lives. What does this mean for parents?
It is no longer primarily up to the noncustodial parent to provide evidence that a move would harm the child. The burden is now on the parent seeking relocation to demonstrate the move would meet the legal definition of the “best interest of the child.” (These criteria can be found here.)
Relocation When Parents Share Joint Legal and Physical Custody
When co-parents have joint legal and physical custody, they share:
- equal decision-making authority
- equal division of parental responsibility
- equal parenting time
Because everything is split down the middle, a relocation away from one parent would have a profound impact on the children’s daily lives.
Unless both parents plan to move, the court is forced to consider a modification to the custody arrangement itself. This would require a courtroom hearing that allows both sides to present evidence and testimony supporting why they should be granted primary physical custody.
Can I Relocate the Children Without My Ex’s Permission?
If you moved your child across state lines without getting a court order or written consent from the other parent, you have a big problem on your hands. This can be considered “parental kidnapping” and may result in loss of custody, thousands of dollars in legal fees and damages, and possible jail time. Always follow the law and seek legal counsel before making any major custody decisions.
Hire a New Jersey Divorce Lawyer
If you are looking to initiate or stop a parental relocation, the New Jersey custody lawyers at Arons & Solomon will create a legal strategy that protects your children. Contact us today for a free consultation.