My ex-wife has custody of our children and wants to move across the country.

Just because you have custody of your children does not mean that moving with them further away from your ex will not create many legal complications for your family.

By Kimberly Gronau
June 17, 2008
ON FAQs/Child Custody

"My ex-wife has custody of our children, and she wants to move across the country with them. What can I do about it?"

Relocation is a fairly common issue in divorce litigation. New Jersey statute does not permit divorced parents to relocate out of New Jersey without either the consent of both parents or a court order. Therefore, if your ex-wife wants to move across the country with the children and you do not consent, she must file a motion with the court seeking permission to relocate. You would then file responsive papers objecting to the relocation request. Your papers would have to cite specific reasons for the objection. As an example, you could advise the court that she is not relocating in good faith, as her main goal is to deprive you of a relationship with your children or that the move would be harmful to the children.

Pursuant to the Supreme Court's decision in Baures v. Lewis, 169 N.J. 91 (2001), the party seeking to relocate must provide a good-faith reason for the move. The court has determined that relocating to be closer to family, higher education, long-term job prospects, and reduced living costs all can be considered good-faith reasons for relocation. Once the custodial parent has met the burden of showing a good-faith reason for the move, the burden shifts to the non-custodial parent to produce evidence that the move is either not in good faith or inimical to the child's best interests. When deciding these issues, the court will look at the following factors:

  1. reasons given for the move;
  2. reasons given for opposition;
  3. past history of dealings between the parties insofar as it bears on reasons advanced by both parties for supporting and opposing the move;
  4. whether the child will receive educational, health, and leisure opportunities at least equal to what is available here;
  5. any special needs or talents of the child that require accommodation and whether such accommodation or its equivalent is available in the new location;
  6. 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;
  7. likelihood that the custodial parent will continue to foster the child's relationship with the non-custodial parent if the move is allowed;
  8. the effect of the move on extended family relationships here and in the new location;
  9. if the child is of age, his preference;
  10. 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;
  11. whether the non-custodial parent has the ability to relocate;
  12. any other factor bearing on the child's interests.

In most cases, the court will not decide the issue based upon the motion papers because of the conflicting affidavits from the parties about the good-faith reasons for the move and whether or not the move will be inimical to the children's best interests. Instead, the court will set the matter down for a hearing and allow the parties to obtain psychological experts, who will render a report regarding whether the move will be inimical to the children's best interests. The psychological experts require a separate retainer, which usually ranges from $5,000 to $7,500. In most cases, the retainer does not cover the expenses of depositions or testimony at trial. Once the reports are completed, the court will conduct a hearing on the issue during which both parties can present evidence to support their respective positions. If the judge finds that the custodial parent does not have a good-faith reason for the move, or that the move will be inimical to the child's best interests, he will deny the custodial parent's request to relocate.

Kimberly Gronau is a family-law attorney and a partner with Laufer, Dalena, Cadicina, Jensen & Boyd, LLC  in Morristown, New Jersey. She can be reached at (973) 285-1444. View her firm's Divorce Magazine profile.

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June 17, 2008
Categories:  FAQs

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