Ask the Attorney: Can My Ex-Wife Relocate Our Children to Florida (Near HER Parents)?

Guest blogger, Matheu D. Nunn, Esq. answers whether an ex-wife can move the children perrmanently out of state if the ex-husband doesn't agree.

Dear Ask the Attorney: 

My ex-wife has family in Florida. Now, she wants to move down there from New Jersey with our kids because she wants them to be closer to her parents (their grandparents) because she says she can get a job in her field more easily down there than here and free babysitting services by her parents. In our parenting agreement, I am specifically entitled to 100 overnights per year. Obviously, I want to be near our kids but my job is up here.  Can she relocate down there without my permission?


Our guest blogger is Matheu D. Nunn, Esq., an associate with the firm of Einhorn Harris Ascher Barbarito & Frost, PC. He is also the current Morris Township Prosecutor.

Dear M.J.

You asked me to answer one of the toughest and most emotionally-driven questions a judge (emphasis on “judge”) can answer.

The answer is your wife may be able to move your children to Florida. In your email, you indicated that your wife wants to move near her parents where the “job market is better.” You also mentioned that under your settlement agreement you will have 100 overnights per year.  These facts, unfortunately, may be helpful to your former wife’s desired move.  However in order to get a definitive answer, more facts may be needed. 

New Jersey law provides that a child who was born in New Jersey or who has resided within its limits for five years may not be relocated by a parent from the State of New Jersey, absent the consent of both parents or an order from the court finding sufficient reason to permit such a move. If that statute applies, the court then determines the existing status of custody of the parties' children. If the situation is of such an arrangement that one parent serves as the primary caretaker, then that custodial parent's request to relocate the children is governed by a two-part test

(1) there is a good faith reason for the move and

(2) that the move will not be contrary to children's best interests.

On the other hand, if a “shared parenting” arrangement exists (each parent essentially performs an equal caretaking role), then the application will be be analyzed under the stricter change-of-custody test. This decision hinges solely upon an analysis of the best interests of the children, regardless of the parent's good faith motivation to relocate.  In such instances, “the party seeking the change in the custodial relationship must demonstrate that the best interests of the child[ren] would be better served by residential custody being vested primarily with the relocating parent.”

If this issue arises in your case – and it sounds like it may – the court will likely conduct a plenary hearing (a hearing with testimony) to determine “the best interests of the children.” The judge may also interview your children in chambers (note: you can propose questions for the judge to ask) and take expert testimony  from individuals who may offer helpful insights about the likely impact of a move upon your children, and about the prospects that a visitation plan will guarantee regular communication and contact of a nature and quality to sustain relationships with you (the non-custodial parent).

Ultimately, you must come forward with evidence not just that visitation will change after the relocation, but that this will negatively affect the children. You can ask the court to consider the school system the children will be enrolled in; the relationship, if any, that you have with your wife’s family members, your wife’s motivation(s), and, whether the proposed parenting schedule created by your wife (assuming she does this) is one that will help foster a relationship with you.

At the risk of being the bearer of potentially bad news, the custodial parent‘s chance of succeeding in a relocation request is not as low as you might hope. As one court put it “changes in visitation alone cannot serve as an ‘independent basis’ for denying removal.”  However, without knowing all of the facts that would be germane to this case, I can give you a definitive answer.  Be ready for a battle and make sure you have a good matrimonial/family lawyer who can help you with this. 

Good luck.

“Ask the Attorney” is a blog in which answers to your legal questions submitted to asktheattorney@einhornharris.com may be answered.  The answers to the questions are for informational purposes only and are not to be construed as legal advice or the creation of an attorney-client relationship.  The facts of each case is different, therefore you should seek competent legal representation. 

This post is contributed by a community member. The views expressed in this blog are those of the author and do not necessarily reflect those of Patch Media Corporation. Everyone is welcome to submit a post to Patch. If you'd like to post a blog, go here to get started.

PAT STEVENSON June 21, 2012 at 06:43 PM
PAT STEVENSON June 21, 2012 at 06:50 PM
stacie bohr June 24, 2012 at 09:30 AM
M.J. I too had a very similar situation except mine was in Florida and I wanted to relocate back to NJ. Fortunately it wasn't a "nasty" divorce and my exhusband agreed that it was in my best interest and that of our daughter to allow me to relocate with our daughter which, by Florida law, he did not have to do. I wish you luck as I'm sure it is a sad and scary notion not being able to see your children as regularly. If I can offer a shread of hope as you struggle with this....it can work as long as both parents work together and not against eachother. While my ex-husband sees our daughter a half dozen times per year (some are more extended visits), he is constantly kept in the loop, is on the phone or skyping often and remains very active as a father from 1500 miles away. We are both remarried and our two families have blended to where my other three children refer to him and his wife as aunt and uncle. We spend holidays together, attend family functions together, visit eachother, etc. So while I know what I am saying offers no legal value, I hope it provides some hope and or comfort that situations such as yours (and mine) really can work. Best wishes to you.
Larry Huyler June 25, 2012 at 03:19 AM
To Pat Stevenson, sounds like an "anonymous" call to the local authorities asking them to do a "welfare" check of your grandkids might be in order. If there's no food in the house, or it's in a filthy unsanitary ramshackled condition, or the children are being emotionally and verbally abused, the authorities may want to remove the children from that environment. With that said, would they come to stay with you or their father. If neither, they may be placed in foster care until the environment they came from improves.
Anna Tivade June 25, 2012 at 12:56 PM
Divorce is quite possibly the single most life altering factor in a person's life. It is not to be taken lightly. Divorcing spouses may become confused, distrustful, needy, insecure, depressed, angry, etc. These feelings can be amplified if an individual moved away from their family or network of friends, because as the separation or divorce moves on it is natural for an individual to want and need a network of support. Many mothers have a first reaction to move themselves and their children back to their own family during their time of need, and although this is not only understandable but also probably financially and emotionally a very smart move, for the children it could potentially be the worst decision made on their behalf (of course every circumstance is different). Children really do best when both parents are actively involved and interested in their lives, that should not change after divorce. In fact, many fathers become even more active in their children's lives after divorce because they need to be more hands on when the children are in their care then when they were married. Children are growing up in a world of broken families, and this is what they learn when they become adults. Divorce lawyers earn a very good living thriving off of divorcing spouses, while the divorcing couple's children kiss their college funds and secure futures goodbye, but it is up to the divorcing couple to realize this. Get educated before you divorce. www.pasanj.org
Matheu D. Nunn, Esq. June 25, 2012 at 01:13 PM
Glad to see my post sparked some discussion. I cannot give "advice" (ethically, we, as attorneys, are prohibited from doing so unless you are a client--insert lawyer joke here). Stacie, glad things worked out for you. Larry, to an extent, you are right--if things are THAT bad at home (no food, unsafe, etc.), as in you have a legitimate concern for the children's welfare, there are goverment agencies that can (and must) assist. Pat, it sounds like your son does not have any control over his case; that's not good. If he does not have an attorney, he needs one. If he does have an attorney, they need to gain some control. The issues you complain of are legitimate, but ones that arise in many cases and a good lawyer can help navigate through the divorce quagmire. Custody "issues", however, can lead to very expensive custody "battles." The most important thing in his case--and it sounds like it is--should be the kids.
James P. Page June 25, 2012 at 06:44 PM
I can't help but agree, but when ones former spouse has no desire to co-parent and does ones best to taint the children against the other parent to the best of their ability. Sorry, but the Courts are worthless when it comes to upholding the Divorce Agreement with all the evidence in the world. Sorry, but the Morris County Family Court system has no real clue what is going on in the cases they precide over.
cv June 25, 2012 at 10:51 PM
Let me tell you people really need to take a step back and realize how they are damaging their children with the things they do when going through a divorce.. My nieces and nephew are damaged goods due to divorce and all the antics that go with it.
stacie bohr June 26, 2012 at 10:22 AM
Couldn't agree more, cv. My daughter has no concept of the ugliness of divorce. While mine wasn't bad, we didn't divorce because our marriage was great. It took time to "muddle through" the nonsense of details, logistics, finances, etc., but we did. She has never heard a bad work spoken on either end. The outcome has been a great friendship with my ex and his wife and I truly believe that our co-parenting makes her thrive. The kids become collateral dammage and I see it all the time. As a child of divorce, I swore I would never do that and I haven't. At risk of sounding cocky, it's something I'm very proud of. Proud of both of us and our respective "new" spouses as they are equally as valuable in loving and nurturing.
Matheu D. Nunn, Esq. June 26, 2012 at 01:06 PM
Stacie, that is wonderful. I'm glad it worked out for you. Unfortunately, often times, at least one of the divorcing spouses sees the divorce as an opportunity to "get back" at the other spouse. And, in the process, without even realizing he or she is doing it, the "angry" spouse destroys the children. Anna, while I appreciate your contribution, I do not know if it is fair to say that we attorneys "thrive" off of divorcing parents. I certainly get no pleasure out of seeing someone in despair--and make no mistake, divorces create great despair. Do attorneys wish to get paid for their work? Absolutely. But we certainly--at least the good ones--have our client's best-wishes (and not our own) in mind.
Anna Tivade June 26, 2012 at 01:47 PM
Mr. Nunn, I absolutely believe you are genuine in your in your statement that you get no pleasure of seeing someone in despair. However, all too often the adversarial process of divorce (hiring the best lawyer to "fight the battle", to "get as much as possible", divorcing spouses pinned against each other while their lawyers "fight" it out, meanwhile mediation is not considered even once until the Judge finally orders it before trial) cause more harm than good to families. Personally, I don't believe divorce should be handled the way it is currently handled. Divorcing Couples with children are more than just parties in dispute, and deserve to be handled with care. I encourage every divorcing spouse to seriously consider how they wish to see their divorce play out. Consider other methods such as collaborative attorneys, mediators, etc. However, in any divorce, education is paramount. I deal with an incredibly high percentage of people in high-conflict divorces, and many are experiencing the effects of Parental Alienation (where one parent seems to be enmeshed with the child, while badmouthing the other parent, confiding with the child about with adult matters, showing court papers to the child, and interfering in parenting time. Lawyers are absolutely necessary, however, divorcing couples should consider at what expense are they willing "to win". As the saying goes "you can put your kids through college, or you can put your lawyer's kids through college".
Mike July 16, 2012 at 03:52 AM
Very well said Anna, I strongly agree the court system and familys do not mix!! Its definetly a crooked way of takin money from familys/children. On top of letting some stranger decide the outcome based on there knowledge of sitting in a court room all day everyday. Although this wont ever change, I believe agencies should perform evaluations 'first' before any decisions are made!! Twisting stories n switching definitions of words by lawyers is not in the best interest of any child. CROOKED LEGAL CROOKS. Without divorce or crime they have no jobs...Continue creatin crime and Prolonging family matters to continue the monopoly, the rich get richer!!
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