I am primary custodial parent. My child lives with ME full time. Her father only has court-appointed visitation with her every other Sunday for 7 hours at a time. He is far behind on child support. I am losing my house in NJ and have the opportunity to move into a house and enroll her in a reputable school system in Florida without my current financial burden.
You can if Dad consents or you obtain a court order. Usually the courts allow relocation if the person who wants to move is not moving just to annoy the other party or to prevent parenting time with the other parent. Given the reasons you state, you will likely be allowed to move so long as you can figure out how to give Dad some parenting time. You should also think about allowing Skyp and FaceTime visits with the child.
You will need to apply to the court if the father does not give consent. There are about 14 factors a judge will need to find it reasonable to permit the move, some of which you address. Not being married and the father not paying support do not really disqualify a father from withholding consent, but it cannot be unreasonable. The main thing is you have to show that you have a reasonable parenting and visitation plan so that the father will still have contact with the child. This may, for instance, involve, besides phone and Skype contact and other forms of computer contact, but permitting visitation. Sometimes this means the parents share trips, the father can see the child in FL (if visitation is supervised you may need to show there is someone who can supervise). Likewise, you may have to bring the child up for visits at least on things like holidays and vacation times. Again, if supervision is required then you will need to make sure there is supervision. If supervision is not required, sometimes the parents will agree to meet halfway between there two locations. Consider going over this with an attorney in family law.
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You need to seek court permission unless you have consent because you fall within the law.
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N.J.S.A. 9:2-2 is that statute that governs your ability to move out of state. It provides:
“When the Superior Court has jurisdiction over the custody and maintenance of the minor children of parents divorced, separated, or living separate, and such children are natives of this State, or have resided 5 years within its limits, they shall not be removed out of its jurisdiction without their own consent, if of suitable age to signify the same, nor while under that age without the consent of both parents, unless the court, upon cause shown, shall otherwise order. The court, upon application of any person on behalf of such minors, may require such security and issue such writs and processes as shall be deemed proper to effect the purposes of this section.”
The seminal case dealing with removal is Baures v. Lewis, 167 N.J. 91 (2001). This case provides:
In a removal case, the burden is on the custodial parent, who seeks to relocate, to prove two things: a good faith motive and that the move will not be inimical to the interests of the child. Visitation is not an independent prong of the standard, but an important element of proof on the ultimate issue of whether the child’s best interests will suffer from the move.
If the parent who wants to relocate can prove this, then the burden of going forward is on the non-custodial parent, who must: “Produce evidence opposing the move as either not in good faith or inimical to the child’s interest.”
This can be accomplished by showing the custodial parent’s past actions to disrupt the child’s relationship with the non-custodial parent or that the opportunities available in the new location are inferior to those available in the child’s current location or that the move will take the child from a large extended family.
These cases are complicated and can be trickey if you do not provide the correct information to the court. I would seek the services an attorney experienced with relocation cases and review your facts with that attorney.
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Unfortunately, it is not quite that simple. In general, you need either consent or permission from the Court. When requesting permission from the Court to relocate to another state, it is treated as a fairly complex matter.
N.J.S.A. 9:2-2 provides that "[w]hen the superior court has jurisdiction over the custody and maintenance of the minor children of parents divorced, 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 against their own consent, if of suitable age to signify the same, nor while under that age. Without the consent of both parents, unless the court, upon cause shown, shall otherwise order. The court, upon application of any person in behalf of such minors, may require such security and issue such writs and processes as shall be deemed proper to effect the purposes of this section."
The New Jersey Supreme Court interpreted this statute in the seminal 2001 case of Baures v. Lewis. The procedure established in that case is two-fold.
First, the party seeking to move must produce at least some evidence ("prima facie" evidence) to establish that: (1) there is a good faith reason for the move, and (2) that the move will not be inimical to the child's interests. Included within that prima facie case should be a visitation proposal.
Second, once that prima facie case has been established, the burden of going forward rests with the noncustodial parent who must produce evidence opposing the move as either not in good faith or inimical to the child's interest.
In determining whether to allow relocation, the Supreme Court established 12 factors to be considered by lower courts in deciding applications to relocate with children outside the State of New Jersey:
(1) the reasons given for the move;
(2) the reasons given for the opposition;
(3) 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;
(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 noncustodial parent to maintain a full and continuous relationship with the child; (7) the likelihood that the custodial parent will continue to foster the child's relationship with the noncustodial 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 or her 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 noncustodial parent has the ability to relocate;
(12) any other factor bearing on the child's interest.
This is, of course, a serious request. If granted, the noncustodial parent will have substantially limited contact with your child. If denied, however, you will be essentially tied to the State of New Jersey against your will.
My strong recommendation is that you retain a qualified attorney to guide you through this process. Please reach out to one of the attorneys here on Avvo. Many of us are willing to sit down with you free of charge to explore the facts, explain the law, and address the likely timeline, costs, and range of possible outcomes. Whether you reach out to me or another attorney, I wish you the best of luck.
Unless you have signed a retainer agreement with my law firm, I am not your attorney and we do not have an attorney-client relationship. Any statements here set forth general principles only; I cannot guarantee that those statements are applicable to the specific facts of your case or that a court of law will agree with those statements. It is not possible to provide sufficient legal guidance without the benefit of a free in-depth case evaluation at my office in Somerville, NJ. Unfortunately, I cannot perform a sufficient evaluation based on a paragraph or two here on Avvo.
You cannot just move out without seeking permission from the court pursuant to the statute set forth in prior answers. While no one can say for certain what a judge would do, the situation you are describing sounds like one in which the court should consider your request favorably. You should retain and experienced family lawyer sooner as soon as possible and get your application filed with the court. Good luck.
In New Jersey, a party is free to move throughout New Jersey without the consent of the other party or a Court Order (unless agreed upon otherwise). Where parties share joint legal custody by virtue of an agreement or court order, the parent of primary residence must obtain the permission of the other parent or of the family court in order to relocate to another state with a child. This is also the case where no custody order has been entered but custody is “in dispute,” such as if a custody case or divorce is pending. There is no strict definition of what “in dispute” means, though, so if the other parent expressly tells you he or she does not agree to a relocation, that is generally enough to mean “in dispute.” In order to obtain permission from the family court, you must demonstrate that the proposed move is made in good faith and that the move will not adversely affect the child. The Court will likely have a hearing in which the following factors will be considered:
1) The reasons given for the move;
2) The reasons given for the opposition;
3) 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;
4) Whether the child will receive educational, health, and leisure opportunities at least equal to that which 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) The 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 or her 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; and
12) Any other factor bearing on the child's interest.
From your post, it would seem as though you have a good faith reason for your move, so it would be up to the Court to find whether the move would be adverse to your child. Please note that if relocation is granted, the Court may see this as a substantial change of circumstances warranting modification of the father's parenting time to account for the move. You should speak with an experienced family law attorney to ensure your interests are protected.
Please mark as "Helpful" or "Best Answer" if our advice helped you. This information is based upon the limited facts you presented. My advice is based on New Jersey law and may be different if I find that the facts presented are different. Additionally, this answer does not contain any confidential information nor does it create any attorney/client relationship.
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