Yes. Your wife has no inherent custody rights to the child that you have with your ex-girlfriend.
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Yes, as the biological parent of your son, she has an absolute right to file the motion and the Court may very well defer to her if it is a choice between her and your wife in terms of custody. However, the Court always has the ability to consider the totality of the circumstances and the child's best interests in rendering a decision.
She may have some good arguments in favor of her application (e.g. It would be in his best interests to spend time with natural mother over stepmother and this constitutes a substantial change in circumstances affecting the child’s best interests warranting a revisiting of custody), but you also have several good arguments to oppose her application. They include, but are not limited to the fact that moving him would disrupt his stability, routine, schedule, friends, social activities, and possibly require him to change schools. Moreover, her failure to exercise meaningful parenting time up to this point may be indicative that she really is not interested in the child’s interests so much as she is interested in “spiting” you.
The general standard by which judges decide custody and parenting time matters is “best interests of the child” and the standard employed for custody and parenting time modification applications is “substantial change in circumstances affecting the welfare/best interests of the child.” However, family judges are given wide discretion over matters such as these and, as a result, it is very difficult if not impossible to predict what a judge will decide. Therefore, you must retain an attorney to oppose any application she files with the court seeking a change in custody and you should consult with an attorney either way to find out what your rights, her rights and your child’s rights are.
You should be prepared to present the court with a proposed schedule for visitation with the child while you are away, both for yourself and for his mother.
Here is a link to a case that describes the standard for relocation that will assist you with your issue: http://info.njdivorceattorney.net/read-the-entire-bauer-v-lewis-decision
You should consider meeting with an attorney well-versed in these areas. I recommend you seek a law firm that concentrates in family law. This concentration allows the attorneys to better understand the issues and complexities of you matter.
Additionally, below are links to articles and information that may assist you with your case.
Brad M. Micklin, Esq.
The Micklin Law Group
187 Washington Ave., Suite 2F
Nutley, NJ 07110
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