A LITIGATOR'S CHECKLIST
In the practice of family law, the frequency of child removal litigation has increased exponentially. The growing number of corporate downsizings, business mergers and acquisitions, and the general growth in employment mobility are all likely to continue this trend. This checklist is intended to assist the litigator in anticipating and preparing for the legal and factual issues presented when child removal is in issue.
A. The Removal Statute: The removal of children from New Jersey is governed by N.J.S.A. 9:2-2. Minor children who are “natives” of New Jersey, or have resided here for five years, cannot be removed from the State without “the consent of both parents, unless the court, upon cause shown, shall otherwise order”.
B. The Custody Statute: Every removal case necessarily implicates the same issues that are likely to arise in a child custody setting. This being the case, the litigator should examine and address the custody factors set forth in the statute (N.J.S.A. 9:2-4):
- The parents’ ability to agree, communicate and cooperate in matters relating to the child;
- The parents’ willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse;
- The interaction and relationship of the child with its parents and siblings;
- The history of domestic violence, if any;
- The safety of the child and the safety of either parent from physical abuse by the other parent;
- The preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision;
- The needs of the child;
- The stability of the home environment offered;
- The quality and continuity of the child’s education;
- The fitness of the parents;
- The geographical proximity of the parents’ homes;
- The extent and quality of the time spent with the child prior to or subsequent to the separation;
- The parents’ employment responsibility; and
- The age and number of the children.
C. The Case Law: The controlling decision is Holder v. Polanski, 111 N.J. 344 (1988). The essence of Holder is the following:
“A custodial parent may move with the children of the marriage to another state as long as the move does not interfere with the best interests of the children or the visitation rights of the non-custodial parent.” (111 N.J. at 349)
Until Holder, the standard was a requirement that a custodial parent establish, among other things, a “real advantage” for the move (Cooper v. Cooper, 99 N.J. 42 (1984)). While the Cooper showing is still relevant, it is no longer the controlling criterion. The moving parent need only show a sincere and good faith reason for the move. Numerous other cases have examined these criteria since Holder, and they require careful analysis by the prudent practitioner. See, e.g., Cerminara v. Cerminara, 286 N.J. Super. 448 (App. Div. 1996); Rampolla v. Rampolla, 269 N.J. Super. 300 (App. Div. 1993); Winer v. Winer, 241 N.J. Super. 510 (App. Div. 1990).
D. The Court Rules: While several of the Rules of Court for practice in the Family Part will undoubtedly arise in the usual removal litigation, the following warrant particular scrutiny: Rule 5:3-3(a) (the appointment of psychological and other experts), Rule 5:8-1 (custody investigations and visitation plans), Rule 5:8-6 (judicial interviews of children), Rule 5:8A (appointment of counsel for the child) and Rule 5:8B (appointment of a guardian ad litem for the child).
Facts, Strategies and Evidence
There is literally no limit to the issues and facts which bear on the “best interests” of a child. In effect, the only limitations are practical considerations of time, money and the resourcefulness of the client and the attorney. In addition to the statutory child custody factors listed above, the following 25 questions are not intended to be all-inclusive, but rather a beginning point for further development.
- What is the present and past mental and physical health of the child? What would health care providers testify about the proposed move?
- To what extent do the children have special or extraordinary medical or physical or educational needs and to what extent can those needs be met and accommodated in the event of removal?
- What is the preference of the child regarding the move? Is the court likely to consider testimony from the child? Typically, a four year old’s alleged preference will not be considered; typically, a fifteen year old’s preference will be.
- What is the actual history of the prior parenting schedule? Have there been prior motions and proceedings pertaining to parenting disputes? To what extent do the parents have a present and past relationship which is otherwise reasonable or amicable, as opposed to hostile or dysfunctional?
- Is there a prior parenting agreement or a court order? What are the designated guidelines and limitations, if any?
- Does the child have extended family either in New Jersey or in the intended removal state? What is the nature of the relationship with the extended family?
- To what extent does the child have relationships with playmates, friends and neighbors? To what extent can these relationships be continued or replicated in the event of relocation?
- What are the child’s educational needs and interests? What are the differences between the existing and the intended schools? What are the child’s academic performance records? What would the child’s teachers testify about the proposed move?
- What are the child’s after-school activities and interests, such as teams, sports, clubs, hobbies, and scouting? To what extent can these activities be continued in the relocation state?
- What is the “sincere, good faith” reason for the parent’s move? Is there more than one such reason?
- What is the reason for the opposition to the move? Is there more than one such reason?
- What is the existing parenting schedule, and how would that schedule be changed by the move? How have holidays, vacations and school recesses been handled in the past?
- If the move were granted, to what extent could additional parenting time be structured in favor of the parent opposing the move?
- What are the current employment and other economic circumstances of each parent? How would those circumstances be impacted in the event of removal?
- What is the cost of living in New Jersey compared with the relocation state?
- What are the increased travel costs (if any) compared to the (presumed) decreased weekly parenting expenses to the nonrelocating parent?
- To what extent has the nonrelocating parent fulfilled or failed to fulfill her or his child support or alimony obligations?
- What is the distance between New Jersey and the removal state?
- What is the recommendation of the guardian ad litem? 20. What are the recommendations of any court-appointed or privately retained mental health experts?
- What is the testimony of treating mental health practitioners, whether of the parties or of the child?
- What are the tangible and intangible factors (such as lifestyle, climate, standard of living, environmental, congestion, crime, etc.) that make up the “quality of life” in New Jersey as compared with the proposed relocation state?
- Has either parent remarried, or to what extent does either parent have a relationship with another intended life partner? To what extent does such a relationship impact upon the child’s present and future?
- To what extent has religion played a factor in the child’s prior upbringing?
- Would it be feasible or practical for the nonrelocating parent to also move to the intended relocation state?
Child removal cases are as challenging as any other presented to the matrimonial practitioner. As in every other difficult situation, thorough preparation and early anticipation cannot be over estimated. Use of this checklist should be of help toward these goals.
Charles C. Abut practices in Hackensack and Springfield, New Jersey. He is a Certified Matrimonial Attorney and a Fellow of the American Academy of Matrimonial Attorney. He has been designated by the New Jersey Supreme Court as a Certified Matrimonial Attorney from 1998-2007 and as a Certified Civil Trial Attorney from 1984-1998.
"I was involved in a VERY complicated and tumultuous child custody, divorce, domestic violence case for two full years. I was fortunate enough to be represented by one of the top matrimonial teams in the state of NJ, and the outcome in my case exceeded my every expectation." - Former Client"Paul personally stood by my side and represented me throughout my injury case. Whether it was business at hand, advice, or a late night phone call to help me understand what was going on; he never took a step back towards helping me. I knew that I could call on him at any time . My case was very successful and I attribute that to Paul's dedication . He even came to me during a snow storm when I could not make it to his office. I certainly would recommend him to anyone." - Former Client