My ex-spouse exercises visitation with my kids, but I want to move with them to another state. Can I go?

By

Charles F. Vuotto, Jr., Esq.

“My ex-spouse exercises visitation with my kids, but I want to move with them to another state. Can I go?”

Answer

It depends. As with most issues in divorce, this is a fact sensitive question. The Supreme Court of our State has established that a custodial parent who seeks removal of a child outside of the state of New Jersey over the objection of the other parent must first demonstrate a prima facie case for removal before the court may further consider the removal application. Baures v. Lewis, 167N.J. at 91, 118 (2001). The moving party has the burden “to produce evidence to establish prima facie that (1) there is a good faith reason for the move and (2) that the move will not be inimical to the child’s interests.” Id. at 118. The Supreme Court explained:

[the initial burden] will be met for example, by a custodial parent who shows that he is seeking to move closer to a large extended family that can help him raise his child; that the child will have educational, health, and leisure opportunities at least equal to that which is available here, and that he has thought out a visitation schedule that will allow the child to maintain his or her relationship with the noncustodial parent. If, for some reason, the custodial parent fails to produce evidence on the issues to which we have referred, the noncustodial parent will have no duty to go forward and a judgment denying removal should be entered.

Baures, 167 N.J. at 118.

In determining a party’s removal application pursuant to the Bauers standard, the court must examine the merits of that party’s request in the context of twelve factors. Specifically, the Bauers court set forth the factors as follows:

(1) the reasons given for the move;

(2) the reasons given for the opposition;

(3) the past history of dealings between the parties;

(4) whether the child will receive educational, health and leisure opportunities at least equal to what is available here;

(5) any special needs or talents of the child that require accommodation and whether such accommodation or its equivalent is available in the new location;

(6) whether a visitation and communication schedule can be developed that will allow the noncustodial parent to maintain a full and continuous relationship with the child;

(7) the likelihood that the custodial parent will continue to foster the child’s relationship with the noncustodial parent if the move is allowed;

(8) the effect of the move on extended family relationships here and in the new location;

(9) if the child is of age, his or her preference;

(10) 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;

(11) whether the noncustodial parent has the ability to relocate;

(12) any other factor bearing on the child’s interest.

Id. at 116-17. (emphasis added); see also O’Conner v. O’Connor, 349 N.J.Super. 381, 397 (App. Div. 2002).

It should be remembered that notwithstanding any statutory or case law, the prevailing guiding principal of any court addressing issues concerning children is their best interests. All questions concerning children must be answered in the context of what is best for them, not necessarily the parents.