This is the first in a series of three articles about parents and children who live in or hope to live in different states. It describes the New Jersey laws that apply when one parent wants to move with a child or children out of New Jersey. The second article, Family Law: Custody and Parenting-time Issues For Parents Living in Different States, discusses child custody and parenting time (visitation) issues for parents living in different states. The third and final article, Family Law: Child Support Issues for Parents Living in Different States, discusses child support issues for parents who live in different states.
This article explains New Jersey laws about removal (moving a child to another state). If the non-custodial parent wants to move out of New Jersey (without a child), there are no laws that prevent the move. However, if a custodial parent wants to move out of New Jersey with a child, there are laws that the custodial parent must follow before moving.
When the custodial parent removes a child to another state, it is usually much more difficult for the non-custodial parent in New Jersey to have parenting time with the child. In a typical custody order, a non-custodial parent may be granted parenting time with the child every other weekend from Friday evening to Sunday evening and dinner time every Wednesday. If the custodial parent wants to move with the child to Florida, it would be practically impossible for the parent remaining in New Jersey to see the child on the schedule ordered by the court.
Restrictions on removing a child
For that reason, several laws restrict the custodial parent from removing a child to another state. Unless the child moves to a neighboring state, removing a child to another state creates such a barrier to parenting time that the parent who has moved the child may be charged with the crime of unlawful interference with parenting time. An exception may be made if the custodial parent who removes the child is fleeing from immediate risk of physical harm from the other parent or immediate risk of harm to the welfare of the child. However, if this exception does not apply, the custodial parent must report the removal and the reason for it within 24 hours to one of the following:
- The Division of Youth and Family Services (DYFS)
- The county prosecutor’s office; or
- The local police.
Non-custodial parent must consent to the move
Generally, a parent who wants to move with a child to another state must discuss these wishes or plans with the other parent. New Jersey law allows a parent to remove a child to another state only with either (1) consent of the other parent, or (2) a court order granting permission. If the other parent agrees that the custodial parent can move to another state with the child, the custodial parent should first ask the non-custodial parent to put that consent (agreement) in writing. This can be a simple typed or neatly handwritten paper stating that the non-custodial parent gives the custodial parent permission to move with the child outside of New Jersey. The paper should be signed by both parents and notarized (witnessed by a notary public with authority to do this) if possible. The law does not require the consent to be in writing, but it is often the best way to avoid a misunderstanding or last-minute change of heart.
Court order needed if non-custodial parent does not consent to the move
If the non-custodial parent does not agree that the child may be moved to another state, the custodial parent must ask the court for an order granting permission to him or her to remove the child to the other state. If the custodial parent moves or states an intent to move in the near future with the child to another state, the non-custodial parent may ask the court (on an emergency basis, if necessary) to enter an order prohibiting the custodial parent from moving the child out of New Jersey.
Custodial parent must show a good faith reason to move and propose a reasonable plan for non-custodial parenting time
If the custodial parent makes a motion (an application to the court for legal relief) to remove the child to another state, he or she first must show that there is a good faith reason to move. A good faith reason may be a good job or supportive relatives in the other state. The moving parent also has to give the court a reasonable plan for when and how the child and the non-custodial parent will have parenting time. That plan must show the court how the child will be able to maintain a strong relationship with the parent remaining in New Jersey. Such a plan may include the majority of school holidays being spent with the New Jersey parent. The plan must state reasonable transportation arrangements for the child, including the type of transportation that is available and who will pay for it. A parenting-time plan may include both the child coming to New Jersey to visit the non-custodial parent or the non-custodial parent traveling to the child’s new state, or both. If the non-custodial parent plans to visit in the other state, the plan must include a statement about transportation, a place to stay, and who will pay for these expenses.
In addition to visits between the non-custodial parent and the child, other ways of communicating should be considered, including telephone (cell phone), e-mail, instant messaging, digital photographs, and webcams.
A non-custodial parent who does not want the child to leave New Jersey must respond to the motion with a reply certification (sworn statement) correcting any statements in the custodial parent’s certification in support of the motion that are inaccurate. The non-custodial parent’s reply certification must also state the reasons the child should not leave New Jersey. These reasons often include concerns about the limits on parenting time and concerns about the child’s safety, health, education, or general welfare in the other state. As an example, a non-custodial parent might want to give the court documents showing that a child is disabled and receives appropriate special education services through the public schools in New Jersey, to raise concerns that those same services are not available in the other state.
The court will consider 12 issues before making a decision about removal. If the court determines that a custodial parent’s reasons for removing the child are in good faith (not intended to interfere with the child’s relationship with the other parent), and determines that a reasonable parenting-time plan may be arranged, the court may hold a hearing. At the hearing, the court will look at 12 issues to decide whether or not to let the parent move with the child to the other state. The court will consider:
- The reasons the custodial parent wants to move;
- The reasons the non-custodial parent wants the child to stay in New Jersey;
- The past history of court and personal dealings between the parents;
- The educational, health, and recreational resources available to the child in each state;
- The resources to address any special needs or talents of the child in each state;
- Whether a visitation and communication schedule can be developed that will allow the non-custodial parent to maintain a full and continuous relationship with the child;
- The likelihood that the custodial parent will continue to foster the child’s relationship with the non-custodial parent;
- The effect of the move on extended family relationships here and in the new location;
- The preference of the child, if the child is a teenager;
- Whether the child is entering his or her senior year in high school;
- Whether the non-custodial parent has the ability to relocate; and
- Any other factor bearing on the child’s interest.
This article is from the May 2009 issue of Looking Out for Your Legal Rights®.