During or After my Divorce, Can I Move Outside of New Jersey

by Obermayer Rebmann Maxwell & Hippel LLP

HiResDuring or after a divorce, it is common for the custodial parent (the parent primarily responsible for the children’s care) to want to move to another state with the children. Perhaps the parent has a job opportunity, family, or a significant other in another state. Perhaps another state offers a lower cost of living, enabling the custodial parent to buy a house and meet the family’s needs.

However, before just picking up and moving across New Jersey state lines, the custodial parent must secure either (1) the express consent of the non-custodial parent or (2) permission from the court in the form of a court order.

There are two different standards the court will apply in evaluating whether the non-custodial parent may move outside of New Jersey with the children. If the parents currently spend equal time with the children, then the court will examine whether one parent’s relocation to another state with the children would be in the best interests of the children. This is called a “best interests analysis.” If the parents spend less than equal time with the children, the analysis is less burdensome for the non-custodial parent. In such a situation, the custodial parent must prove only (1) a good faith reason for the move and (2) that the move will not be contrary to the children’s best interests. If the custodial parent meets this burden, then it is the non-custodial parent’s burden to present evidence (1) that the move is not in good faith or (2) that the move will be contrary to the children’s best interests.

In out-of-state relocation cases, both parties should be ready to discuss the following issues either with each other or with the court:

1. The reason for the move: Is the move for a good reason like the presence of family members in another state, or is the move for a bad reason like keeping the children away from the non-custodial parent?

2. The history of dealings between the parties and the likelihood that the non-custodial parent will foster a relationship with the non-custodial parent after the move: Can the parties work with each other to make sure the children maintain contact with the non-custodial parent after the move?

3. The educational, health and leisure opportunities in the new proposed location: Will the children attend a school district that is similar to their current school district, or will it be worse?

4. Effect of the move on extended family relationships: Are the children close to grandparents, aunts, uncles and cousins in New Jersey? Will they continue to maintain contact with them if they move outside of New Jersey?

5. The non-custodial parent’s ability to relocate: Can the non-custodial parent move to the new state too, or is it difficult for him or her to leave New Jersey due to work, family ties or health issues?

Before moving out of New Jersey, make sure you check with the non-custodial parent first. If he or she does not agree, then be prepared to file an application with the court. Be ready to defend your decision and discuss why it is not contrary to the children’s best interests.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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