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Can You Just Take Your Child and Leave New Jersey?

No. New Jersey has a statute which prohibits you from leaving without a written consent from the other parent or a court order.

Specifically, N.J.S.A. 9:2-2 provides:

“When the Superior Court has jurisdiction over the custody and maintenance of the minor children of parents divorced, separated, or living separate, and such children are natives of this State, or have resided 5 years within its limits, they shall not be removed out of its jurisdiction without their own consent, if of suitable age to signify the same, nor while under that age without the consent of both parents, unless the court, upon cause shown, shall otherwise order. The court, upon application of any person on behalf of such minors, may require such security and issue such writs and processes as shall be deemed proper to effect the purposes of this section.”

The seminal case dealing with removal is Baures v. Lewis, 167 N.J. 91 (2001). This case provides:

In a removal case, the burden is on the custodial parent, who seeks to relocate, to prove two things: a good faith motive and that the move will not be inimical to the interests of the child. Visitation is not an independent prong of the standard, but an important element of proof on the ultimate issue of whether the child’s best interests will suffer from the move.

If the parent who wants to relocate can prove this, then the burden of going forward is on the non-custodial parent, who must: “Produce evidence opposing the move as either not in good faith or inimical to the child’s interest.”

This can be accomplished by showing the custodial parent’s past actions to disrupt the child’s relationship with the non-custodial parent or that the opportunities available in the new location are inferior to those available in the child’s current location or that the move will take the child from a large extended family.

Note that a different analysis is presented when the parties have joint legal and shared custody. The removal analysis doesn’t apply, but rather a change of custody determination must be made, which will be governed by a best interest analysis. See also O’Connor v. O’Connor, 349 N.J. Super. 381 (App. Div. 2002) and Mamolen v. Mamolen, 346 N.J. Super. 493 (App. Div. 2002).


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