Bordentown, NJ asked in Arbitration / Mediation Law, Child Custody, Divorce and Family Law for New Jersey

Q: My wife wants a divorce and wants to take the kids out of state in the middle of the school year when my son has a

My wonnHas a mild learning disability and she speaks English to assure the medical and educational well being of my children. I am their father and she wants to take them to St Lo hi is Missouri where her sister lives . By law can she just pick up and go

1 Lawyer Answer
Leonard R. Boyer
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  • Immigration Law Lawyer
  • Clifton, NJ
  • Licensed in New Jersey

A: NO! She cannot leave N.J. without a Court Order, which allows it. You can certainly fight this by retaining an experienced matrimonial attorney. In a landmark ruling handed down recently by the New Jersey Supreme Court, the court unanimously reversed its 2001 Baures holding that a custodial parent could relocate to another state with a child so long as the move was made in good faith and was not “inimical [harmful] to the child’s best interests.” In today’s Bisbing v. Bisbing ruling, it was established that trial judges should now simply determine whether a relocation would be in the “best interests” of the children involved. The standard adopted in Baures did not represent a lasting trend in the law.” In fact, the court found that there was no real progression in the law in New Jersey, no statute written after Baures that definitely recognized a custodial parent’s presumptive right to leave New Jersey with the children. the New Jersey Supreme Court ultimately ruled that courts in New Jersey must use the best-interests standard that is used in custody cases here in New Jersey when deciding relocation cases. And, just like in traditional custody cases, a parent must show the court changed circumstances to modify or amend a custody order or agreement that includes a provision about relocation. The factors, including the history of custody, the health of the parents and the current living situation of each parent, that the courts must look to when determining if the move is in the best interests of the child have long since been contained in New Jersey law at N.J.S.A. 9:2-2. Now, rather than those factors being used to determine only custody or parenting time, they will also be used to assess if a move out of New Jersey is in the best interests of the child who would be relocated out of the state and away from their other parent. It seems that this decision will now give more control to parents who are not primary custodial parents of their children when the other parent wishes to move because there is no longer a presumption in favor of the custodial parent. And, the assumption that the move will be beneficial to the children simply because it is beneficial to the parent has been abandoned.

Under New Jersey state law, it is assumed that regular contact with both parents is in the best interests of the child, though certain circumstances can change that. However, there are other factors that go into determining a child’s best interests and which custody arrangement can best serve those interests.

These factors include:

Your child’s relationship with each parent

The parents’ willingness and ability to communicate with each other

Stability of both parents

Any history of domestic violence

The child’s preference

Practical considerations (such as distance between the homes, distance between the homes and the child’s school and related issues)

This is obviously not an exhaustive list. Child custody statutes are complicated.

Do not let geographic restrictions interfere with your choice of an attorney. You need to pick the best lawyer you can find and remember one rule: a good lawyer is generally never cheap, and a cheap lawyer is generally never good so don't choose based on price.

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