We Ask: Can I Relocate With My Child Outside of New Jersey?
As a general matter, a New Jersey custodial parent cannot simply “remove” or relocate with a child outside the State of New Jersey without first obtaining either (1) the non-custodial parent’s consent or (2) a valid Court order from the Superior Court’s Family Part.
Doing so without consent or permission could result in serious consequences including civil and/or criminal penalties; the non-offending parent could also attempt to use this parenting indiscretion against you as a predicate to amend or change custody.
This rule is nevertheless replete with exceptions…
For example, a custodial parent with sole “legal” custody can take their children wherever he or she may desire provided there isn’t a valid countervailing Court order. Remember: “legal” custody isn’t the same thing as “physical” custody in New Jersey. In brief, “legal custody” of a child means you “have a say” concerning said child’s life, welfare, education, medical treatment and general upbringing prior to emancipation. “Physical custody,” however, means you have the right to actual physical time with the child (a.k.a. “parenting time”).
For parents with joint legal custody, the issue generally turns on the purpose and duration of the out-of-state trip.
As a legal custodian, leaving the state with your child for a vacation or day trip is usually okay provided that it doesn’t interfere with the other parent’s custodial time. But be warned: a non-custodial parent with legal custody has a right to know both (1) where the child is going and typically (2) how to contact the child while on the trip.
Removing a child from the country without the other parent’s consent or a valid Court Order is another matter altogether; it is almost always prohibited and, barring extraordinary considerations, foreign authorities will assist with the child’s return pursuant to the Hague Convention.
However, if the move is permanent, then the key analysis is whether the parents genuinely “share” custody or not. When one parent is clearly the parent of primary residence, then the Court will likely permit the move so long as it is (1) proposed in “good faith,” meaning it isn’t intended to thwart the non-custodial parent’s custody rights, and (2) isn’t inimical to the child’s interests (See Baures v. Lewis). But if the parents DO truly share custody, then the analysis is significantly more complicated; the moving-parent’s application would be considered a request to change custody, not just move away, and the moving party would then need to meet a higher burden by showing that the proposed relocation is in the child’s best interest. (See O’Connor v. O’Connor).
These issues can be very emotional and yes, relatively complicated for both the moving and non-moving parents. You need diligent legal representation to defend your child’s best interest in this extremely trying time.
If you have specific questions regarding whether you can move your child outside of New Jersey, or if your child’s other parent is trying to move them against your will, contact the child custody attorneys at DeMichele & DeMichele online right away or call (856) 546-1350 to schedule an appointment with our friendly and helpful staff.