If you or your co-parent are considering relocating out of state with your children, a recent New Jersey court decision has some valuable lessons. Under New Jersey law, before a custodial parent moves out of state with one or more children, he/she must get the consent of the non-custodial parent. If the non-custodial parent objects to the relocation, a court decides the matter. There are specific procedures and legal standards which must be met and can’t be circumvented, which is what happened in the case of Dever v. Howell.
According to New Jersey statute, the “minor children of parents divorced, separated or living separate . . . shall not be removed out of its jurisdiction . . . without the consent of both parents, unless the court, upon cause shown, shall otherwise order.” Therefore, a custodial parent must make the appropriate application with the court and convince the court that they should be able to relocate with the children over the non-custodial parent’s objection. In deciding the matter, the court looks at what is in the best interests of the child.
In the Dever case, the father moved his children out of state before getting permission from the mother and without applying to court. Preceding the move, the mother had requested overnight visits. The trial court judge found that the father knew he was required to obtain an order before relocating to South Carolina, but he removed the children anyway, because he feared the court might grant the mother’s pending motion for overnight visits with the children. After he lost at trial, the father requested the court reconsider the decision. He also argued that because the children had been living in South Carolina for some time, the burden should shift to the mother to show cause why the children should be moved back to New Jersey. The trial court rejected the father’s arguments and ruled that he must return the children to New Jersey until he obtains a court order permitting the relocation of the children.
The Appellate Court agreed with the trial court stating the law clearly provides that when the other parent objects to relocation beforehand, the process is for the parent seeking to relocate to first apply for an order permitting relocation, establish “cause,” then relocate only if permitted by the court. The father’s interpretation that the mother should show cause why the children should be returned would encourage individuals to first remove children out of state, then later seek court approval. That would undermine the purpose of the legislation which is to protect the relationship between the non-custodial parent and the child.
This case demonstrates the importance of complying with New Jersey law. Whether you are the parent relocating or objecting to the relocation, an experienced attorney can assist you with preparing and presenting a strong case to protect your rights and your child’s.
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