I was never married to father, who reside in NJ. However, we have a child support order and a subsequent order in place. In the subsequent Court Order, I was granted "sole, legal & physical custody of the minor child ... Defendant (father) is not seeking a parenting time schedule with the child at this time."
With that Order in place, can I move out of state without the father's consent? Do I have to write to him and advise him that we are moving out of state (he has NEVER seen our child or exercised any parenting time in over 8 years).
If I do not have anything from him, e.g. Court Order or notarized letter, allowing me to move our son out of state, can I be charged with kidnapping or any other offense?
Please advise. Your input would be greatly appreciated.
Divorce / Separation Lawyer
If your Order says you have SOLE custody, it means that you have the decision-making authority for all of the child's "life-decisions." One of those life-decisions is where your child resides. It is important, however, that you not infringe upon the child's (and the father's) ability to have a meaningful relationship. As custodial parent, the State of NJ requires you to foster a healthy relationship between the child and the non-custodial parent. In light of the fact that you are the one moving away, the court MAY impose the burden upon you to facilitate parenting time. In other words, depending on how far away you move, you may have to shoulder the bulk of the burden or expense in transporting the child for visitation.
This response is provided for informational purposes only and not intended to create a lawyer-client relationship. You should consult a lawyer with any legal issues you may have.
Family Law Attorney
I am a New York attorney for over 30 years who has been involved in many interstate custody cases and relocation, each state has different legal precedents administering relocation issues.
From the facts you present - there is no prohibition on your relocating to another state. You have a fundamental right to travel. I say there is no prohibition on you moving since I presume that there is no court Order or Agreement prohibiting you from relocating. A letter notifying him of your choice to move is a courtesy that might strategically be better sent after you move. It would invite him to object and seek a court order to prohibit you from moving. If a hearing were held for you to obtain permission to move it would look at whether you would interfere with his rights and opportunity to visit the child. However, since he does not visit and the order left it open, rights are not pure abstrations but only have force if exercised. By taking clear action you avoid a dispute. Be prepared to modify support to aid his visits if you move far away however, or seek innovative ways to provide access should he seek it.
As the sole custodial parent, you may move with the child. However, the father should be given notice that you are planning on relocating out of state and be given an opportunity to exercise parenting time. If he does not object, you can move. If he objects to your moving out of state (which based on the information you have provided) is highly unlikely, you should consult with a family law attorney. With you alreadying having sole legal and physical custody, the burden would be on hm to petition the Court.
Kidnapping does not apply as long as you give him notice of where the child will be.
MARY TOM, ESQ.
HUNZIKER, JONES & SWEENEY, P.A.
Wayne Plaza II
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Wayne, NJ 07470
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