First, I recommend that you do not agree to allow him to relocate to another state. New Jersey has a statute which prohibits him from leaving without your written consent or a court order. Specifically, N.J.S.A. 9:2-2 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.
Note that a different analysis is presented when the parties have joint legal and shared custody. The removal analysis doesn’t apply, but rather a change of custody determination must be made, which will be governed by a best interest analysis. See also O’Connor v. O’Connor, 349 N.J. Super. 381 (App. Div. 2002) and Mamolen v. Mamolen, 346 N.J. Super. 493 (App. Div. 2002).
You should seek the services an experienced attorney to assist you with this situation.
I would be happy to follow up with you. Please email me directly or call my office if you would like to schedule an appointment either in person or by telephone. www.burnhamlawgroup.com Disclaimer: You cannot rely on the advice of an attorney given over the internet. The exact facts of your situation, including facts which you have not mentioned in your question, may completely change the result for your situation. Please be aware that the above comments are neither protected by attorney-client privilege, nor may be the basis for a malpractice lawsuit should the suggestion be followed with undesirable results.
While I cannot be certain what your questions is, in general it a party has "sole" custody his/her burden when making a relcoation application is not particulary high, i.e. he must establish that he has a "good faith" reason for the relocation and that the relocation would not be harmful to the child.
All such matters are very case specific, accordingly, for relieable advice regarding your options, including securing significant, alternative parenting time, you shoudl consult with an experienced family law attorney.
Kenneth A. White, Esq.
New Jersey Family Law Attorney
The Answer provided was based on the limited information provided, and represents information based on the law in general, not a legal opinion that can be relied upon. Before a formal legal opinion can be offered I would need an opportunity to review all possible relevant facts and circumstances. You cannot rely on the advice of an attorney given over the internet. The exact facts of your sitaution, including facts which you have not mentioned in your question, may completely change the opinion that is being offered. Please be aware that the above comments are neither protected by attorney-client privilege, nor may the same be the basis for a malpractice lawsuit.
This type is case has such serious consequences that you really should have an experienced attorney. The parent cannot relocate with a child out of state without either the agreement of the other parent or a court order. However, as you have read from the other posters, the standard is not very high. I am not sure what you meant custody was given or why you would not have long weekends and hoidays or what happened at your initial trial. If you do not have an attorney representing you now, you should ask the Judge to give you some time and hire one. It is hard to give more specific advice without knowing the specific facts of your case.
Disclaimer: The information you obtain at this answer is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation. Review of this answer does not in any way constitute legal representation,
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