Q: I have joint custody of my 16 and 11 year old children in NJ. My ex wants to move out of the country with the kids.
We both own homes a couple miles apart. The kids stay with me about half the time. Can she move without my consent?
A: No! Your ex-wife must make a motion with the Court to do so. However, if you think there is a real danger of this happening, then you need to be proactive and retain an experienced matrimonial attorney to bring an action before the Court, to impound their passports. It always pays to be proactive and it is dangerous to be reactive.
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In 2017, the law governing relocation requests by the primary custodial parent out of state changed materially. In 2017, the New Jersey Supreme Court issues the Bisbing v. Bisbing decision, which reflected a major shift in position for the state in its efforts to balance the interests of custodial and non-custodial parents, when a custodial parent seeks to relocate with the children.
Under the old Baures v Lewis standard, when a primary custodial parent wanted to relocate out of state with the children, (1) there was a presumption in favor of permitting that parent to move, believing that as long as the request was being made in good faith and not simply as an excuse to reduce the other parent's time with the child; (2) as long as there was no showing that there would be harm to the children for the move to occur; and (3) that the no-custodial parent had been offered a reasonable visitation schedule, the court would approve of the move.
Bisbing v Bisbing now places relocation requests by a primary custodial parent on the same footing as all other custody and visitation disputes – application of the “best interests of the child" standard. As a result of this new 2017 NJ Supreme Court decision, there is no longer a presumption in favor of the primary custodial parent being able to relocate with the children, and the court is now required to examine the relationship between both parents and their children and the focus is on what is best for the children and whether the move is truly in the children's best interest. Under the new legal standard, your role in the children's day-to-day life is critically important and you have an absolute right to oppose her request or you have the ability to sit down with her and try to work together to find a solution acceptable to both of you, based on your respective roles in the children's lives.
Thank you for your question. I'm sure the thought of your children being so far away from you is very worrisome. The short answer is no, she cannot move with the children, out of New Jersey without either your permission or a Court order. That being said, you may need to proactively file to prevent her move in case she tries to go without asking the Court's permission.
There are many facets to a situation like this. The best thing you can do is consult with an experienced family law attorney to find out your rights and options.
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