During a divorce, most parents have trouble agreeing on the best way to divide the time with their children. The challenges multiply when one parent decides to move a considerable distance from the other parent’s home.
New Jersey Child Custody and Visitation
Child custody includes both legal custody, which refers to a parent’s authority to participate in major decisions regarding a child’s health, education and general welfare. Physical custody refers to the parent with whom the child lives with. Joint legal custody means that both parents share major parenting decisions and joint physical custody means that the children live with each parent for equal amounts of time through the year.
New Jersey courts base custody decisions primarily on the child’s best interests and the courts assume that children benefit from having two involved parents. Joint legal custody is common, however, a court will generally order joint physical custody only when both parents are strongly committed to shared parenting.
Even the best laid parenting plans can become chaotic when one parent needs to move a long distance from the other parent’s home. New Jersey law requires the parent of a minor child that was born in, or has lived in, the state for at least five years, to get permission from the other parent or the courts before moving the child out of state. A move within the state will also require permission if it’s far enough away to require a change in an agreed-upon or court-ordered parenting plan. Unless the other parent signs a consent order, the parent who wants to move with the child will have to file a motion in superior court.
As our society becomes increasingly mobile, it is more common for families to relocate. At the same time, advances in technology have made it easier for parents to keep in touch with children at a distance. Due to these changing circumstances, courts in many states, including New Jersey, will allow a custodial parent to relocate with children in most situations. The decision will hinge on several factors. The most critical factor will be the kind of parenting arrangement currently in effect.
No Custody Order in Effect
If there is no current custody order, a parent who lives with a child can ordinarily take the child on a short trip away from home without worrying about obtaining the court’s permission. However, any parent who takes a child out of state against the other parent’s wishes risks losing rights in any eventual custody determination.
There are exceptions, such as domestic violence or child abuse, which can justify such conduct, but these are rare. If your child has left home with the other parent and you suspect that the parent is not planning to return, call the offices of Artusa Family Law Firm as soon as possible to protect your child and your relationship with your child. You may want to obtain a temporary custody order from the court. In an extreme case, you can pursue parental kidnapping charges.
Sole or Primary Physical Custody
A parent with sole or primary physical custody has only to show that a proposed move is in “good faith”. This means the move isn’t motivated by a desire to interfere with the other parent’s visitation rights and that the move won’t harm the child. Some acceptable reasons include a new job or better job prospects, a spouse’s job change, or being closer to relatives.
The parent who is moving must also show that the child will have health, educational and recreational opportunities in the new location that are at least comparable to their current opportunities, and they must propose a realistic and specific visitation plan that will allow the child frequent contact with the non-custodial parent.
Under a typical plan, a child would spend school holidays and most of summer vacation with the non-custodial parent. The plan should also include a reasonable transportation plan and specify ways that the child could stay in touch with the non-custodial parent, such as unlimited phone calls, e-mails and text or video-messaging.
In addition to these factors, the court may consider any additional, relevant factors in deciding whether the move would harm the child which may include:
- Whether the child has any special talents or needs that require accommodations, and whether such accommodations exist in the new location.
- The likelihood that the custodial parent will encourage a relationship between the child and the non-custodial parent.
- The move’s potential impact on extended family relationships.
- The child’s preferences (if the child is of sufficient age and maturity).
- Whether the child is entering the senior year of high school.
- Whether the non-custodial parent might be able to relocate.
Joint Legal and Physical Custody
New Jersey courts apply a different standard in cases of true joint custody. This type of custody will trigger a deeper level of review because it isn’t only considered custody “on paper,” or for purposes such as child support calculations, but rather actual joint custody that includes equal or nearly equal parenting time and an equal division of day-to-day parenting responsibilities.
If the objecting parent proves that this type of custody arrangement exists, the court will approach the case as a request for modification of custody due to a change in circumstances. The court will hold a full hearing on the best interests of the child and appoint one of the parents as the primary custodial parent. The child will then live with the primary custodian, whether that is the moving parent or the parent who isn’t.
Move-away disputes are usually time consuming and expensive. It’s in your child’s and your best interest to contact the family law attorneys at Artusa Family Law Firm in Jersey City. We will make sure your rights are preserved and that an outcome that is in the best interest of both you and your child is reached. The award winning Artusa Law Firm covers all of Northern New Jersey and we can help you.