9/12/2014

Moving Away After Your Divorce? Don't Just Start Packing Just Yet.

     An exciting career opportunity.  A remarriage.  A much needed support system.  A lower cost of living.   Going “home” to the family and friends you left when you moved to New Jersey with your now ex-spouse.  There are many possible reasons for a relocation out of New Jersey after a divorce. 

     If you are child free, it can be a great opportunity for a truly fresh start to the next chapter of your life.  But if you have children and you intend to bring them with you, obtain the advice of a family law attorney long before you look for new homes or give notice to your employer.  Depending on your circumstances, you may be legally barred from moving your children out of state.

     When one parent needs or wants to relocate in such a way that will impact the other parent's custody or parenting time rights, it can create a number of complications. Obviously, one parent's relocation will have a dramatic impact on each parent's time and/or involvement with the children. Moving with kids after a divorce is a legally complicated situation that sometimes even requires a court’s involvement to resolve.

     Under New Jersey law, a parent cannot remove a child outside of New Jersey without first getting the consent of the other parent.  If the other parent opposes a move, the moving parent must obtain a court order permitting the move.   This is no simple task.

     If the parent who wants to move is the Parent of Primary Residence, two main factors must be proven. The first decision the court will make is whether the relocating parent is moving in good faith, and not to frustrate the other parent's rights.  Moving for a remarriage or to live closer to family and a support system are examples of reasons that usually satisfy this requirement. 

     The court's next step will be to determine if the move would be harmful to the child. Among other factors, the court will consider whether the move would harm the child's relationship with the other parent.

     However, if the two parents share joint physical custody, the parent who wants to move must prove that it is in the best interest of the child to substantially modify custody and permit the move. This is generally a tougher burden to meet.

     It is important to note here that many people completely misinterpret this area of law to mean that as long as they do not technically move out of state, they do not have to worry about any legal ramifications and can just go about their plans to move.  Wrong!  An “intrastate” (as opposed to interstate) relocation might still require the other parent’s consent or a court order.  Why?  Because if your move is causing a change of circumstances that frustrates the parenting time plan set forth in your divorce order, that order needs to be amended and a completely different arrangement needs to be put in place.  For example, if the kids primarily live with Mom but have been with Dad every Monday and Tuesday overnights, or even every Wednesday evening after school, that clearly will not be possible anymore if Mom lives in Cape May and Dad lives in Montvale.

     There are certainly exceptions to the basic scenarios described above.  This area of family law is extremely multifaceted and fact sensitive.  The basic explanations in this article should not be relied upon in place of a thorough consultation with a family law attorney experienced with relocation cases.  An attorney can address your specific circumstances at length and a put into place a plan of action geared toward your specific family.

     One piece of advice we give every client considering a major relocation after their divorce is to address the legal aspects of the situation long before making any major plans for a move.  Carefully think through where you plan to live, where your children would go to school and some options for their new parenting time schedule with the other parent.  Speak to an attorney about the specifics of your case to understand which aspects of this area of law will likely apply to you, what pitfalls you should avoid and what your next steps should be. 

     If the specifics of your situation do indeed require you to obtain the consent of your child’s other parent before moving, it will take time to negotiate and prepare a Consent Order that amends your previous divorce order and outlines a new parenting plan.  If a settlement is not possible, it will likely take a few months, and sometimes longer, for a court to make the ultimate decision.  Sometimes a judge will be able to decide the issue based solely on a Motion your attorney files on your behalf.  However, often a plenary hearing (which is similar to a trial) needs to be held.  Sometimes the judge will even appoint a custody expert to conduct an evaluation and prepare a report recommending whether the move should be permitted.  The expert’s involvement will add considerably to the time and fees involved.

     You can now imagine how problematic it is when a parent announces the move to their child, sells their house, commits to a new job in a new city and then meets with an attorney for the first time after receiving their ex-spouse’s negative reaction to their plans.

     Whether you wish to move with your children or you are the parent opposing such a move, it is critical to work with an experienced family law attorney who can give you advice tailored to your circumstances and help you develop a careful plan of action.   At Ruvolo Law Group, LLC, our attorneys have represented numerous clients with relocation matters involving interstate, intrastate and even international moves.

If you want to know more about relocation after a divorce, call our team at 973-993-9960 to schedule a consultation.

     Blog authored by Laura Ruvolo Lipp, Esq.