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Moving Out of State with a Minor Child After Divorce

Moving out of state with a minor child after a divorce

Many divorced spouses who have a minor child remain in close proximity to one another post-divorce to ensure continuing access and support for that child. However, circumstances may change, necessitating the need for a parent to relocate out of state or country. If both parties consent to the relocation then there is no need for judicial intervention. However, many if not most parents object because the relocating party intends to take the parties’ minor child as well. In those instances, court approval is required prior to relocation. Court involvement begins with an application by the parent seeking to relocate with a child.

The court then analyzes the specific facts and circumstances of the particular case. If no formal custody order is in place – that is the first analysis that has to be completed. Should the parties have joint legal and joint physical custody? Or maybe one person has primary or sole physical custody? In New Jersey, the relocating party has the burden then to prove that he or she has a good faith motive to move, such as a change in employment, remarriage or the move is not harmful to the child. The relocating parent, however, will not be acting in good faith if the motive for relocating is to frustrate, hinder, or in any way adversely affect the other party’s relationship with the child.

Even upon a showing of a good faith motive, the court may still deny a removal application if the move will be harmful to the child’s interests. The court looks to various factors in determining whether a move will be harmful to the child’s interests, including past history of the parties in relation to the child, the child’s age, will the school and environment should be comparable to that provided in New Jersey, and whether the non-relocating parent has the ability to re-locate. The relocating parent is required to produce a proposed parenting plan comparable to that engaged in before the relocation, so the court will not deny an application for removal as against the child’s interests based solely on a change in visitation.

Tanya N. Helfand, Esq. concentrates in Family Law in NY and NJ. We have a free ½hr. consultation. Tanya N. Helfand, Esq., is a Certified Matrimonial Attorney and mediator. The firm welcomes your questions and inquiries at [email protected] Everything is confidential. This article is not legal advice. Please consult an attorney.

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