Frequently Asked Divorce Question #
3 (Removal)
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, 167 N.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.
