If there is a custody order in place, can I take my kids out of the state?
It depends. Generally, whether you can take your child out of the state for a short period of time depends on what your custody order says. The custody order may allow you to take your child out of the state, prohibit you from taking the kids out of the state, or it may not address this issue at all. If it does not address the issue, you may need either the consent of the other parent or permission from the judge. The judge may require that you post a bond or other security conditioned upon the return of the child to the state.1
If you would like to move to another state with your child, then you may have to ask the court’s permission (called a removal application). If you and the other parent share custody, and you want to move to another state with your child, then the court views this as if you had asked for a modification of custody. This means that the judge will look at this in the same way as if you had asked the court to take custody away from the other parent and give it to you. To get custody modified, you must convince the judge that there is “a substantial change in circumstances from the time the current custody arrangement was established,” and that a transfer of custody would be in the best interest of your child.1
If you have physical custody of your child and the other parent has visitation, then you must prove to the court that you have a “good faith” motive in moving (that you are not moving merely to make visitation difficult for the other parent) AND that the move will not go against what is in the best interest of your child. When a court considers this, it will look at how changes in visitation may affect the best interest of your child. You may also have to give a plan for proposed visitation.
Some factors that the court may look at to decide if you will be given permission to relocate are:
- reasons for the move;
- reasons for the other parent’s opposition to your move;
- how the past history of the parties affects the reasons for and against the move;
- whether the child will receive educational, health, and leisure opportunities that are as good as the ones s/he has now;
- any special needs or talents of the child that require specialized help and whether that help is available in the new location;
- 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;
- the likelihood that the custodial parent will continue to encourage the relationship of the child with the noncustodial parent;
- the effect of the move on extended family relationships;
- the child’s preference if s/he is mature enough to express it;
- whether the child is entering senior year in high school;
- whether the noncustodial parent has the ability to relocate; and
- any other factor bearing on the child’s interest.
Not all of these factors will be relevant or given equal weight by the court.2
1 NJSA §9:2-2
2Baures v. Lewis, 167 N.J. 91, 770 A.2d 214 (Supr Ct 2001)