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Divorce FAQ's

1. I am a divorced mother with two children. I can’t stand New Jersey anymore, and I want to move to North Carolina. What steps am I required to take to move out of this “rat trap” of a state?

If a custodial parent wants to move out of New Jersey with a child(ren) there are some elaborate laws that the custodial parent must satisfy before moving. When a custodial parent removes a child(ren) to another state, then it will be much more difficult for the non-custodial parent who still lives in New Jersey to exercise his parenting time with the child(ren). In most parenting plans the non-custodial parent has parenting time every other weekend from Friday evening to Sunday evening. Moreover, most parenting plans also permits the non-custodial parent to have parenting time one evening during the week. The most common day is for Wednesday evening.  If the custodial parent wants to move with the child(ren) to North Carolina, then it would be impossible for the non-custodial parent to exercise his parenting rights. Given these dynamics, New Jersey law requires a custodial parent to obtain a court order before she can relocate out of the Garden State with a child(ren).

2. What are the legal restrictions that New Jersey imposes on non-custodial parents on removing a child(ren)?

New Jersey law restricts the custodial parent from removing a child(ren) to another state unless she obtains a court order. The courts believe that a removal of a child(ren) to another state will make it very difficult for a non-custodial parent to exercise his parenting time.

Nonetheless, the parties could always agree that the custodial parent could relocate to another state. Believe it not sometimes the non-custodial parent does consent to the removal. Thereafter, the parties could execute a consent order to permit the removal. This process could save the parties countless thousands of dollars in legal fees and psychological expert fees.

In summary, there are two ways that a custodial parent can relocate out of New Jersey. First, a parent who wants to move could file a motion with the Family Court and obtain a court order to grant the removal. Second, the parents can agree that the custodial parent can move out of New Jersey. Thereafter, the non-custodial parent can sign a consent order to permit the removal.

A consent order is basically an agreement wherein the parties agree that the custodial parent can relocate. Moreover, the consent order should spell out the parenting time for the non-custodial parent. The consent order should delineate that the non-custodial parent should have reasonable phone contact and computer access with the children as well. Finally, the consent order should spell out how the travel costs for the non-custodial parent and the children will be split for any visits.

It is always advisable to try to resolve a relocation case via a consent order. Relocation cases routinely costs each party thousands of dollars in legal fees. Moreover, these cases are often adjourned countless times. If possible, a fair settlement for all parties should be reached via a well thought out consent order/agreement.

3. What steps should I take if my husband does not want to execute a consent order to permit me to relocate with children?

If your husband does not want to execute a consent order, then you will be required to file a formal relocation/removal motion. This type of motion can be a very exhausting and expensive undertaking. In this motion you are basically asking the Family Court to grant you an order to permit you to relocate or move to another state.

4. I am a divorced father of two beautiful children. My ex-wife is ready to move to Florida, and she has no intention of obtaining any court order to permit her to make the move. What legal steps can I take to stop her?

If your wife (custodial parent) moves or states an intent to move out of New Jersey in the near future with the children then you (the non-custodial parent) may request that the Family Court enter an order to bar her from moving. You will have to file this motion on an emergent basis.

5. What is the legal burden that the custodial parent must prove to relocate with the children out of New Jersey?

There was a major change in the legal standard to relocate. On August 8, 2017, the New Jersey Supreme Court changed the NJ child relocation standard. The name of thelandmark case is Bisbing v. Bisbing, August 8, 2017. Since 2001, the family court have factors set out in  the major case of Baures v. Lewis when litigating relocation cases. However, on August 8, 2017, in the ground breaking case Bisbing v. Bisbing, the Supreme Court of New Jersey changed the New Jersey child relocation standard, and it also made significant changes in cases where parties share joint legal custody.  The court found that the reasons cited in 2001 for establishing the “good faith/not inimical to the child” test no longer supported the court’s 2001 restatement of the test. First, social science was not settled regarding the effect an out-of-state relocation would have on a child. Further, the trend in other jurisdictions cited by the court, that of recognizing a custodial parent’s right to relocate, had not continued. As a result, the court revisited the Baures case and it also revised the rule for evaluating relocation requests. In Bisbing, the court again replaced the “good faith/not inimical to the child” test with a “best interests analysis” when parents have joint legal custody. That test would apply regardless of whether the relocating spouse provided the primary residence for the children or the parents equally shared custody. The court held that the new best interests analysis is in harmony with custody statute, New Jersey Statute 9:2-4.

The custodial parent must show a good faith reason for the move out of New Jersey. Moreover, she must also propose a reasonable parenting plan for the non-custodial parent. A good faith reason to move may be obtaining a better job, a job transfer, to be closer to relatives, or to relocate to be with a new spouse. The moving parent also has to provide the court with a reasonable plan. This plan must spell out when and how the child and the non-custodial parent will have parenting time. This plan must also show the court how the child will be able to maintain a strong relationship with the parent who is stranded in New Jersey. In the typical plan the non-custodial parent has parenting time during the children’s school holidays, Christmas break, Easter break, and for 4 to 6 weeks during the summer.

The plan must delineate that there are reasonable transportation arrangements for the child. The plan must include the type of transportation that is available for the children. Finally, the plan must also state who will pay for the transportation costs. Additionally, the parenting plan should provide that the non-custodial parent and the child(ren) should have liberal ways to communicate with each other. Most parenting plans provide that the non-custodial parent should have unlimited communications via including telephone (cell phone), e-mail, instant messaging, digital photographs, webcams, and SKYPE.

6. I love my two children very much. I don’t want my ex-wife to relocate to North Carolina with our two children. What steps can I take to try to stop her from moving?

It is important to emphasize that the current status of New Jersey law heavily favors the legal rights of the custodial parent to relocate. Fighting a removal case is like starting a baseball game being behind 5 to 0. Nonetheless, sometimes the non-custodial parent can be successful to stop a removal.

A non-custodial parent who does not want the child to leave New Jersey must hire a lawyer and file a formal legal response to the motion to request a removal. Your legal response must clearly state your reasons why you are opposing your wife’s request to move to North Carolina. Your legal response must also state the reasons why your children should not move out of New Jersey.

The most common reasons raised to object to children moving are; a) limits on parenting time; b) concerns about the children’s safety, health, education, or general welfare in the new state; c) the custodial parent will interfere with the non-custodial parenting rights if the children move.

7. What factors does the family court consider before it rules on any motion to relocate/removal?

There was a major change in the legal standard to relocate. On August 8, 2017, the New Jersey Supreme Court changed the NJ child relocation standard. The name of the landmark case is Bisbing v. Bisbing, August 8, 2017. Since 2001, the family court have factors set out in  the major case of Baures v. Lewis when litigating relocation cases. However, on August 8, 2017, in the ground breaking case Bisbing v. Bisbing, the Supreme Court of New Jersey changed the New Jersey child relocation standard, and it also made significant changes in cases where parties share joint legal custody.  The court found that the reasons cited in 2001 for establishing the “good faith/not inimical to the child” test no longer supported the court’s 2001 restatement of the test. First, social science was not settled regarding the effect an out-of-state relocation would have on a child. Further, the trend in other jurisdictions cited by the court, that of recognizing a custodial parent’s right to relocate, had not continued. As a result, the court revisited the Baures case and it also revised the rule for evaluating relocation requests. In Bisbing, the court again replaced the “good faith/not inimical to the child” test with a “best interests analysis” when parents have joint legal custody. That test would apply regardless of whether the relocating spouse provided the primary residence for the children or the parents equally shared custody. The court held that the new best interests analysis is in harmony with custody statute, New Jersey Statute 9:2-4.