Want to Get Away? Why You Should Think About Child Custody Before You Move out of Town – Dwyer v. Dwyer
- posted: Jun. 22, 2016
Child custody and support matters involve complicated legal issues that require the counsel of an experienced attorney. There are specific types of custody which have legal significance affecting each parents’ rights, responsibilities and the status of the children. In any proceeding involving the custody of a minor child, the rights of both parents are equal. It is the public policy of the State of New Jersey to assure minor children of frequent and continuing contact with both parents after they have separated and dissolved their marriage. It is in the public interest to encourage parents to share the rights and responsibilities of child rearing. Parents must be fully informed about the implications of custodial terms and what they mean. A Court will normally grant joint legal custody unless one parent has been found to be unfit. Unless a parent’s rights are terminated and someone else has adopted the child, the parent still is responsible for child support.
When entering into a custody agreement, parents must never assume that it can easily be changed. If there is a significant change of circumstances and the parents are unable to agree on a change of custody including a change in parenting time or removal, an action is brought into Court. This can entail a process involving expert witnesses and litigation. In making an award of custody, the Court shall consider, but not be limited to the following factors:
a. the parents’ ability to agree, communicate and cooperate in matters relating to the child;
b. the parents’ willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse;
c. the interaction and relationship of the child with its parents and siblings;
d. the history of domestic violence, if any;
e. the safety of the child and the safety of either parent from physical abuse by the other parent;
f. the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision;
g. the needs of the child;
h. the stability of the home environment offered;
i. the quality and continuity of the child’s education;
j. the fitness of the parents;
k. the geographical proximity of the parents’ homes;
l. the extent and quality of the time spent with the child prior to or subsequent to the separation;
m. the parent’s employment responsibilites;
n. the age and number of children.
One question that regularly comes up is what happens when one parent wants to move away. Past judicial decisions require the custodial parent to demonstrate a benefit of the move before the Court will grant removal. Other decisions have been based on whether the children will suffer from it.
The custodial parent must first establish a good faith reason to move out of State. The Court will then determine whether the move is against the child’s best interests or if it will adversely affect the visitation rights of the non-custodial parent. A reasonable visitation schedule will have to be developed. It is a recognized factor that it is in the child’s best interest to have frequent contact with both parents.
Where neither parent was the primary residential custodian, custody to one parent will first have to be changed. If there is no agreement, this will entail a best interest evaluation. The parent who then becomes the parent of primary residence will have to go through the steps required for approval to remove the child.
In the case of Baures v. Lewis, an application to remove a child from the jurisdiction over the non-custodial parent’s objection, the Court looked to the following factors: a. reasons for move; b. reasons given for opposition; c. past history of dealings between parties insofar as it bears on reasons advanced by both parties for supporting and opposing move; d. whether the child will receive education, health and leisure opportunities at least equal to what is available here; e. any special needs or talents of the child that require accommodation and whether such accommodation or its equivalent is available in the new location; f. whether a visitation and communication schedule can be developed that will allow the non-custodial parent to maintain a full and continuous relationship with the child; g. the likelihood that the custodial parent will continue to foster the child’s relationship with the non-custodial parent if the move is allowed; h. the effect of move on the extended family relationships here and in the new location; i. if child is of age, his or her preference; j. whether the child is entering his or her senior year in high school, at which point he or she should generally not be moved until graduation, without his or her consent; k. whether the non-custodial parent has the ability to relocate; and l. any other factor bearing on the child’s best interest.
New Jersey’s Superior Court recently examined a case in which one parent’s decision to move to Florida and send her child to live with her father in the meantime was considered a “de facto” agreement to change the parents’ existing child custody arrangement.
Mother and Father divorced in 2009, following a 20-year marriage in which the couple had four children. They agreed to share joint legal custody of the kids, with Father assuming primary physical custody of the two boys and Mother assuming primary physical custody of the two girls. The couple’s younger daughter later went to live with Father. The couple had initially agreed to share physical custody of Daughter, but Mother moved to Florida about five months later.
Mother later asked a court to enforce the shared physical custody arrangement. She claimed that Husband had “encroached” on her relationship with Daughter and had refused to allow them to spend time together when Mother visited New Jersey. A trial judge denied the request. The judge tentatively ordered that Husband have primary physical custody and that Wife be allowed liberal visitation time. The judge also tentatively ordered Mother to pay Husband $100 per month in child support for Daughter. Mother’s attorney advised the judge that she agreed to the order, which then became final.
Mother then requested the court to reopen the order, this time represented by a new lawyer. The judge denied the request, noting that Mother had agreed to the tentative decision. The judge also observed that Mother acknowledged leaving Daughter with Father while she lived in Florida for more than a year at the time of the decision.
Affirming the decision on appeal, the Court said the lower court didn’t abuse its discretion in refusing to reopen the earlier ruling. It said there was no new evidence, or an indication that a mistake had been made or a fraud perpetrated on the court that would justify reopening the ruling. Although Mother argued that the lower court didn’t review a reply filing in which she denied that she had “abandoned” Daughter to go live in Florida, the evidence showed that she acknowledged leaving the child with Father in the year since the move. That move, the Court said, created a “de facto change in custody.”
Without a thorough analysis of the implications of a custody designation or parental actions, there can be unexpected consequences. For example, there was a case in which a father could only get work in Montana. The divorce took place in New Jersey and the mother and child remained in New Jersey. The father gave the mother sole legal custody thinking he was being helpful because he was so far away. He paid child support. The mother became ill and died. She wrote in her Will that the child be cared for by her brother. Since the father left the child and seldom saw her, the natural father faced extensive, bitter litigation to try to get his child back. It was not advisable for him to give up legal custody. Further, in the intervening years, he seldom saw his daughter because the ex-wife refused to cooperate and give him access to the child. Although he lived far away, he should have enforced parental contact with his child to avoid any inference that he abandoned her.
It is vital that a person considering a divorce or grappling with alimony and related legal issues seek the counsel and advice of a seasoned family law attorney. The New Jersey child custody lawyers at Helfand & Associates have more than 100 years of combined experience representing clients in a wide range of divorce, child custody, and child support cases. Our lawyers work diligently to ease the stress on clients in what can be a trying process by building the strongest possible cases for the people whom we represent.
Our offices are conveniently located in Whippany and New York City. We are happy to offer clients a free consultation in family law and other cases. Contact us online, call our New Jersey office at (973) 428-0800, or call our New York City office at (646) 213-9053 to set up an appointment with one of our attorneys.
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