Divorce FAQ's

Child Removal Issues

1. I have been divorced for five years, and I want to move to another state. I can’t stand New Jersey any longer! What are the requirements to permit me to move away and escape from New Jersey?

A custodial parent(s) may only relocate if he or she has the consent of the former spouse. Alternatively, the relocating spouse must obtain a court order to permit the move. The purpose of the statute is to preserve the rights of the non-custodial parent and the child to maintain and develop their familial relationship. This mutual right of the child and the non-custodial parent is usually achieved by means of a parenting plan. Because the removal of the child from the state may seriously affect the parenting schedule of the non-custodial parent, the courts require the custodial parent to show why the move should be permitted.

The custodial parent must show both good faith in making the move and that the relocation will not be contrary to the child’s interest. Our Supreme Court has delineated twelve factors that must be considered to determine whether the custodial parent has proven good faith and that the move will not adversely affect the child’s interest:

a. The reasons given for the move;

b. The reasons given for the opposition;

c. The past history of dealings between the parties insofar as it bears on the reasons advanced by both parties for supporting and opposing the move;

d. Whether the child will receive educational, health and leisure opportunities at least equal to that is available here;

e. Any special needs or talents of the child that require accommodation and whether such accommodation or its equivalent is available in the new location, and

f. 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;

g. The likelihood that the custodial parent will continue to foster the child’s relationship with the non-custodial parent if the move is allowed;

h. The effect of the move on extended family relationships here and in the new location;

i. If the child is of age, his or her preference;

j. Whether the child is entering his or her senior year in high school at which point he or she should generally not be moved until graduation without his or her consent;

k. Whether the non-custodial parent has the ability to relocate; and

l. Any other factor bearing on the child’s interest.

2. Can I move away from New Jersey with the child without obtaining the court’s permission?

The removal of children of parents who are divorced or separated to another state is not permitted without court authorization unless both parents consent. The parents can always mutually agree to permit removal. However, if there is no mutual consent amongst the parties, then New Jersey places strict limits on the ability of a custodial parent to remove the children from New Jersey.

In general, the removal of the children from this State by a custodial parent is governed by N.J.S.A. 9:2-2, which provides in pertinent part:

When the Superior Court has jurisdiction over the custody and maintenance of the minor children of parents divorce, 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 ….. without the consent of both parents, unless the court upon cause shown, shall otherwise order.

3. What do I have to establish to obtain the court’s approval to move to another state?

The major case that deals with child removal cases is Baures v. Lewis, 167 N.J. 91 (2001). This is a New Jersey Supreme Court case. This case established what the burden is on the parent who wants to move away from New Jersey. The major point of the landmark Baures case is that it made it significantly easier for a parent to move out of New Jersey with the children in a removal case. The Baures case noted that there was a growing trend in the law easing restrictions on the custodial parent’s right to relocate with the children.

The Baures case established the burden that a parent must establish to convince the court to grant a removal application. In terms of the burden of going forward, the party seeking to move, who has had an opportunity to contemplate the issues, should initially produce evidence to establish prima facie that; (1) there is a good faith reason for the move; and (2) that the move will not be harmful to the child’s interest.

If, for some reason, the custodial parent fails to produce evidence on the issues above, then the non-custodial parent will have no duty to go forward and a judgment that denies the removal will be entered.

If the custodial parent does establish a prima facie case, then the court will set the case down for a plenary hearing. At the hearing, the custodial parent must produce evidence that supports the move. Whereas, the non-custodial parent must produce evidence opposing the move as either not in good faith or harmful to the child’s interest.

4. What is the overall guiding principle in a removal case?

At all times in a removal case the guiding principal is what is in the best interests of the children. The court will focus on the question whether the children have a better life in New Jersey or in the new state.

5. When will I get my court date and a plenary hearing?

The custodial parent is entitled to a hearing only after having satisfied the threshold requirements. The court in Baures v. Lewis, 167 N.J. 91 (2001), held that the party seeking to move should initially produce evidence to establish a prima facie case that; (1) there is a good faith reason for the move, and (2) that the move will not be inimical to the child’s best interest. If the custodial parent satisfies this burden, then the court will set the case down for a plenary hearing. The courts often refer to this proceeding as a Holder or a Baures hearing.

6. How are these removal hearings handled by the courts?

The court will then schedule the removal case for a case management hearing. At this hearing, the lawyers for the parties will meet with the judge and discuss a discovery deadline. The parties will be ordered to exchange their discovery. The discovery will consist of any proofs that will be submitted at the plenary hearing. Some relevant proofs are a comparison of the school districts, pictures of the new home, information about the new home, a reasonable proposed visitation plan, and psychological reports. Finally, the court will encourage the parties to try to reach an amicable settlement.

In many removal cases the court will also order that a family psychologist be appointed to prepare an evaluation report. In most cases the court will order that the parties split the costs of the retainer fee to hire the psychologist. The family psychologist normally charges between $3,000 to $5,000 to prepare a report and to testify at court.

The psychologist will then interview the child, the parents, the extended family members, review all of the school records, and any other relevant evidence. Thereafter, the psychologist will prepare a written report and give his professional opinion as to whether the removal of the child out of New Jersey is in the “best interests of the child.”

After the discovery is complete and the psychologist’s expert report is submitted, the court will then schedule for a plenary hearing. In some removal cases, the hearing will be held in one afternoon session. However, in many other removal cases the hearing will consist of several court sessions. Please keep in mind that the New Jersey family courts are overwhelmed. In many removal cases, a judge may be only able to hear a few hours of testimony even though the parties have been in court waiting all day. The family court judges have many cases that they have to hear each day. Consequently, it is almost impossible for a family court judge to hear a removal case on a continuous basis. This makes it very difficult for the parties, and it also increases the cost of the litigation. Lawyers always have to charge for their waiting time.

7. What are some of the types of proof that I will have to submit to the court in support of my removal application?

The custodial parent who is proposing the move out of New Jersey may want to provide the following information or evidence to the court;

a. The reasons given for the move.

b. Proof of inability to find suitable employment in New Jersey.

c. Proof that a career move to another state would be beneficial to the family and to the child.

d. The past history of dealings between the parties. The custodial parent should submit proof that he or she has been fully compliant with any visitation or parenting plans that were part of any divorce judgment or court order.

e. Proof that the child will receive educational, health and leisure opportunities at least equal to what is available New Jersey.

f. Any special needs or talents of the child that require accommodation and whether such accommodation or its equivalent is available in the new location.

g. Proof that a visitation and communications schedule can be developed that will allow the non custodial parent to maintain a full and continuous relationship with the child.

h. Proof that there is a strong likelihood that the custodial parent will continue to foster the child’s relationship with the non custodial parent if the move is allowed.

i. Proof that the move will produce no detrimental effect on the extended family relationships, here and in the new location.

j. If the child is of age, his or her preference.

k. Information about the new school district where the children may be moving to.

l. Pictures of the new home where the child will live.

m. Proof that the moving parent has strong family ties to the new state.

n. A proposed reasonable visitation plan if the removal application is granted.

o. Any proof that proves that the child will have a better life in the new state.

8. What can I do to stop my wife from moving away from New Jersey?

The non-custodial parent may want to produce the following proofs and information to the court at any plenary hearing:

a. The reasons given for the opposition to the move.

b. Proof that the moving party can find suitable employment in New Jersey.

c. Proof that the moving party has not permitted a reasonable visitation and a shared parenting plan in the past.

d. Proof that the child will receive better educational, health and leisure opportunities in New Jersey than in the proposed new home state for the child.

e. Any special needs or talents of the child that require accommodation in New Jersey. Moreover, any proof that verifies that such accommodation or its equivalent is not available outside of New Jersey.

f. Proof that a visitation and communication schedule is impossible to develop.

g. Proof that it is impossible for the non custodial parent to maintain a full and continuous relationship with the child outside of New Jersey.

h. Proof that the custodial parent will not continue to foster the child’s relationship with the non custodial parent if the move is allowed

i. Proof that it will be impossible for the child to maintain extended family relationships, here and in the new location.

j. If the child is of age, his or her preference to remain in the Garden State.

k. Proof that the child’s current school district in New Jersey is superior to the proposed new state’s school district.

l. Proof that your former spouse has not complied with the visitation provisions of the judgment of divorce or with any other court orders regarding visitation.

m. Proof that the child has bonds with extended family members in New Jersey.

n. Proof that it will be impossible for the parent to have a reasonable visitation plan with the child if the removal is granted.

9. I live in New Jersey and I want to move back to my homeland of Ecuador with my young daughter. Does the removal standard of law as enunciated in the Baures case apply to a foreign country?

Yes, the Baures holding also applies to removal applications to foreign countries. In the case of MacKinnon v. MacKinnon, 191 N.J. 240 (2007), the legal issue before the New Jersey Supreme Court was whether the standard for removal of a child outside of New Jersey, as established in Baures v. Lewis, 167 N.J. 91 (2001), applies when a custodial parent seeks to relocate the child to a foreign country.  The  McKinnon court held that held that in assessing the standard established in Baures v. Lewis, 167 N.J. 91 (2001), for the out of state relocation of a child, the Court acknowledged that “[t]he interstate and international removal contexts involve the same interests.” Custodial parents have the right to“self-determination,” while non-custodial parents have the fundamental right to a continued relationship with their child. However, it is the best interests of the child that is the central concern of courts adjudicating relocation applications. “The same ‘ultimate issue’ is at the heart of international removal. The interests remain the same and, therefore, the Baures test appropriately balances the concerns implicated in either situation.” Because the Baures factors can accommodate the distinctions between interstate and international removal applications, the standard is appropriately flexible enough to accommodate international removal applications, including those which involve a foreign country that is not a signatory to the Hague Convention. Nonetheless, the New Jersey Supreme Court cautioned that international removal is more complex than interstate removal,and, therefore, the trial court should apply the Baures factors expansively to adapt to international circumstances.

10. Does every application for a removal of a child require a full blown out plenary hearing?

No, not every relocation case requires a full plenary hearing. Plenary hearing are very time consuming, they are constantly adjourned, and they cost big bucks. Moreover, the family courts simply do not have the personnel and the time to conduct as many plenary hearings as they schedule. For the past five years, the major rage in the family courts has been to schedule a plenary hearing for every post-judgment application. This rage may be slowing down some. An interesting case is Barblock v. Barblock, 383 N.J. Super. 114 (App. Div. 2006) . In this case the issue was whether the trial court committed an error by granting plaintiff-mother’s application to remove the parties’ two minor children to Buffalo, New York in the absence of a plenary hearing? The Appellate Division held no error was committed by not holding a plenary hearing. More specifically, the Barblock court held that trial court did not commit an error in granting the mother’s removal application in the absence of a plenary hearing since the trial judge heard extensive oral argument on the motion, considered all of the written submissions of the parties, and appropriately determined that the two-prong test set forth in Baures v. Lewis, 167 N.J. 91 (2001), was satisfied. The main point of the Barblock case is that a plenary hearing is not required for all contested removal cases. Here, the father failed to raise any genuine issues of material fact, and it was not necessary for the trial court to conduct a plenary hearing.

11. I have just lost my removal case, and my wife will be permitted to relocated to Florida with my two young boys. It is going to cost me a small fortune for parenting time expenses by paying for all of the airfare. Can I file a motion to reduce my child support based upon my increased parenting time expenses?

What a great idea! You have an excellent chance of prevailing on your motion. In the case case of Heselton v. Maffei, 374 N.J. Super. 184 (App. Div. 2005), the  court held that the mother’s relocation with the minor children of the marriage to Maine justified a downward modification of the father’s child support as a result of his increased parenting time expenses.

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