child custody-custodial parent moving child to another state

Does a Divorced Custodial Parent have a Right to Move a Child to another State?

The Story

Plaintiff and defendant divorced in 2002. Pursuant to the parties’ settlement agreement, they agreed to share residential custody of their child, H.M. In 2010, defendant filed a motion seeking to permanently relocate to Florida with H.M. Defendant asserted that she and her present husband wished to relocate to Florida for employment reasons. Additionally, defendant alleged that H.M. would have greater educational opportunities in Florida, and would enjoy life in Florida more than in New Jersey. Plaintiff opposed the application and filed a cross-motion seeking residential custody.

In the midst of pretrial litigation, defendant filed an application seeking permission to temporarily remove H.M. from New Jersey to Florida. Defendant alleged that she wished to take H.M. for four weeks to Florida for extended vacation purposes, as well as for H.M. to obtain “a feel for our new neighborhood” in Florida.

Defendant opposed the motion

Decision

The court will permit the pretrial, temporary removal of a child to another state for “extended vacation purposes,” particularly since the child is of advanced age and such temporary removal will provide a reasonable opportunity for the child to experience living in the proposed new state prior to trial. Additional factors the court has considered include whether the temporary removal will interfere with the child’s present schooling; whether the party seeking the removal has any history of violating court orders or otherwise demonstrating a flight risk; and whether the other party will also have an equitable opportunity for the child to take an “extended vacation” in that party’s temporary care pending trial.

Rationale

Pursuant to N.J.S.A. 9:2-2, when the Superior Court has jurisdiction over the custody of a child of divorced parents, and such child is a native of New Jersey, or has resided five years within its limits, the child shall not be removed out of its jurisdiction against the child’s own consent, if of suitable age to signify same and/or without court order.

In Kavrikis v. Kavrikis , the court found that the Legislature intended “a suitable age” to be 14 years, as a chronological, prima facie starting point. The court further found that even if a child older than 14 consents to relocation, the court may include an analysis of whether such consent was informed. In Baures v. Lewis , the N.J. Supreme Court set forth criteria for consideration of a removal application. One of the factors set forth was the preference of a child of suitable age. Thereafter, in O’Connor v. O’Connor , the Appellate Division held that a removal application between two shared residential custodians may be analyzed as an application for a change of custody. In such circumstances, the custody criteria set forth in N.J.S.A. 9:2-4 is applicable, one of which is the preference of the child when of a sufficient age and capacity to reason so as to form an intelligent decision.

In this case, H.M. has already achieved his 14th birthday. Further, the parties are presently court-ordered joint residential custodians. Accordingly, under every reasonable analysis of statutory law and case law, including N.J.S.A. 9:2-2, N.J.S.A. 9:2-4, Baures , O’Connor and Kavrikis , H.M.’s input on the proposed removal is relevant to the disposition of the removal application. The court finds that since H.M. is of sufficient advanced age and capacity to reason, it will be helpful for him to have an opportunity to experience each proposed residence on a firsthand basis.

The court further finds that an order permitting H.M. to spend time in Florida during part of the summer vacation, prior to trial and over plaintiff’s objection, does not in any fashion offend the anti-removal policy considerations of N.J.S.A. 9:2-2. The term “removal” in N.J.S.A. 9:2-2 does not prohibit temporary departures from the jurisdiction for legitimate purposes, particularly under court order.

It is inappropriate to permit either parent to monopolize all of the child’s time prior to trial. Such monopolization would impair H.M.’s ability to spend quality time with each parent in each environment to assist him in hopefully reaching a reasoned, mature and intelligent opinion as to where he wishes to reside. The court will grant defendant’s application for a pretrial, temporary removal of H.M. to Florida for a reduced, two-week “extended vacation.” Further, the court directs that immediately thereafter, H.M. will spend two weeks of “extended vacation” with plaintiff in New Jersey. The court finds under the facts of this case, it is logical and appropriate for H.M., nearly 15 years old, to have a reasonable opportunity to experience life in both defendant’s care in Florida, as well as in plaintiff’s care in New Jersey, prior to trial.

In reaching this decision, the court has considered other important factors as well. First, the extended time will take place during the summer months when school is not in session. Second, there is no objective evidence of any kind that either party has ever attempted to obstruct the other party’s parenting time. Nor is there any history suggesting that defendant will not return H.M. to New Jersey at the conclusion of the two-week temporary removal period.

Child custody-relocation-McKinley_v_Naters  complete decision

[This blog post is courtesy of the terrific information provided by the N.J. Law Journal]

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About Lawrence "Larry" Berezin

I retired from the private practice of law after a 35-year legal career and fight parking tickets for people like you and me. I love sharing valuable information, tips and tricks to help drivers beat NYC parking tickets.

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