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Custody, Visitation and Out-of-State Moves
By: Cheryl Morrissey (2001)
Summer is a time of transition for many families, so we are often asked if parents can change their residences after a divorce or separation. New Jersey Law addresses this issue, but, of course, the facts of each case must be considered when applying it.
Many couples with children think about this issue when they are negotiating their separation agreement and do decide on arrangements with which they both can live (e.g. specifying that the parties must reside within a certain radius of their current home for a certain number of years). Absent unusual circumstances, a court will enforce a valid agreement that the parties reached themselves.
If a separation agreement or divorce judgment does not specifically address the issue of relocation, then statutory and case law must be applied. New Jersey has a statute that clearly prohibits one parent from permanently removing minor children from this State without the permission of the other parent or the Court. A person who violates this law is subject to criminal sanctions. A parent may leave New Jersey without the children and without permission of the Court or other parent, but then, of course, custody and visitation will have to be adjusted.
Most parents do not leave the State without notifying the other parent, at least. In those cases, the parents either reach an accommodation about parenting time on their own or turn to the Court for help. The custodial parent may petition the Court for permission to relocate with the children or the non-custodial parent may ask the Court to stop such a relocation.
Family Law judges tell us that these cases are among the heart-wrenching for them to decide. The higher courts have instructed trial judges to carefully consider evidence on the custodial parent's motivation for relocating and the best interests of the children.
Generally, a custodial parent may move minor children to another state as long as the move is not contrary to the best interests of the children and does not substantially interfere with the visitation rights of the non-custodial parent. Our Courts have recognized that modern American society is quite mobile and that there are many good faith reasons that a parent may want to move. These may include returning to one's home state and family; finding a new and better job; remarriage to someone who lives or is moving elsewhere.
On the other hand, there are many good faith reasons that a non-custodial parent would want to stop a relocation. The roles of mothers and fathers have changed substantially in the last few decades and so it is quite common for those parents to be intimately involved with the daily lives of their children, even after a divorce. Fostering the children's relationship with both parents is important. Accomplishing this requires flexibility and creativity if distance make frequent interaction impossible.
If a custodial parent proves a good faith reason for moving, the Court's focus shifts to creating an alternate visitation schedule that will minimize the adverse effect of the custodial parent's move on the rights of the other parent. If a non-custodial parent is no longer able to have frequent short visits with the children, then he or she may be awarded large blocks of time each year instead. For instance, instead of seeing the children once or twice every week, the non-custodial parent may have the children for most of their school vacation time each year, including summers. The custodial parent may be required to bear much of the expense of transporting the children to the non-custodial parent and providing other means for the children to have frequent contact with that parent. A recent case in Bergen County considered the issue of whether the Internet can afford a non-custodial parent quality visitation time. That issue has not been fully resolved yet, but an Appellate Court did find the proposal there to build a web site with the use of camera-computer technology to be a "creative and innovative" way to a provide daily face-to-face communication between parent and child.
In sum, under current New Jersey Law, a divorced custodial parent seeking to relocate with minor children will probably be permitted to do so if he or she proves a sincere good faith reason for the move and participates in good faith with a visitation plan that preserves the children's relationship with their other parent. These are very difficult circumstances for all of the parents and children involved, but mobility is a fact of modern American life that is not likely to change soon.
Cheryl Morrissey is a Partner at WJ&L, LLP
who practices in the Litigation and Matrimonial areas.