Bill Text: NJ S381 | 2010-2011 | Regular Session | Introduced
Bill Title: Codifies relevant factors for hearings following custody determinations when one parent wants to move out-of-State with the children.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2010-01-12 - Introduced in the Senate, Referred to Senate Judiciary Committee [S381 Detail]
Download: New_Jersey-2010-S381-Introduced.html
STATE OF NEW JERSEY
214th LEGISLATURE
PRE-FILED FOR INTRODUCTION IN THE 2010 SESSION
Sponsored by:
Senator ROBERT W. SINGER
District 30 (Burlington, Mercer, Monmouth and Ocean)
SYNOPSIS
Codifies relevant factors for hearings following custody determinations when one parent wants to move out-of-State with the children.
CURRENT VERSION OF TEXT
Introduced Pending Technical Review by Legislative Counsel
An Act concerning removal cases and amending R.S.9:2-2 and supplementing Title 9 of the Revised Statutes.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. R.S.9:2-2 is amended to read as follows:
9:2-2. 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 five years within its limits, they shall not be removed out of its jurisdiction against 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. In determining cause under this section a court shall conduct a hearing in accordance with the provisions of P.L. , c. (C. )(now pending before the Legislature as this bill). The court, upon application of any person in 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.
(cf: P.L.1948, c.321, s.2)
2. (New section) A court which has jurisdiction pursuant to R.S.9:2-2 over the custody and maintenance of the minor children of parents divorced, separated or living separate, where the custodial parent seeks to move out of the jurisdiction with the minor children over the noncustodial parent's objection, shall conduct a hearing in accordance with the provisions of P.L. , c. (C. ) (now pending before the Legislature as this bill).
3. (New section) a. The custodial parent seeking to move out of this jurisdiction must establish the custodial parent's good faith in seeking the move and that the move will not be inimical to the child's interest. The custodial parent bears the burden of proof by a preponderance of the evidence.
b. A court shall consider the following factors as appropriate to the facts of each case in determining whether the custodial parent has met the burden of proof in establishing good faith and that the move will not be inimical to the child's interest:
(1) the reasons given for the move by the custodial parent;
(2) the reasons given for the opposition to the move by the non-custodial parent;
(3) the past history of dealings between the parties as it may bear on the reasons given by both parents for supporting and opposing the move;
(4) whether the child will receive educational, health and leisure opportunities in the new state 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 state;
(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) the preference of the child if of age, including if the child is entering the senior year in high school then the child should generally not be moved until graduation without the child's consent;
(10) whether the noncustodial parent has the ability to relocate;
(11) any other factor bearing on the child's interest which the court deems relevant.
c. The custodial parent seeking to move outside the jurisdiction shall produce for the court's review a proposal for visitation by the non-custodial parent.
d. The non-custodial parent objecting to the custodial parent's application to the court pursuant to R.S.9:2-2 to move out of the jurisdiction with the minor children over the noncustodial parent's objection shall bear the burden of proving that the move out of the jurisdiction is being made in bad faith by the custodial parent or that the move is inimical to the child's interest. A court shall consider the same factors set forth in subsection b. of this section as appropriate to the facts of each case in determining whether the non-custodial parent has met the burden of proof in establishing bad faith by the custodial parent and that the move will be inimical to the child's interest.
e. The non-custodial parent seeking to challenge the proposal for visitation developed and presented to the court by the custodial parent pursuant to subsection c. of this section bears the burden of proof to establish that the proposed change in visitation will negatively affect the child.
4. (New section) a. A court conducting a hearing in accordance with the provisions of P.L. , c. (C. )(now pending before the Legislature as this bill) shall order a psychological evaluation of the custodial parent and the non-custodial parent at the request of either parent. The psychological report shall be made available to the court to assist the court in evaluating the past history of dealings between the parties as it may bear on the reasons given by both parents for supporting and opposing the move.
b. The parent requesting that the court order the psychological evaluation shall be responsible for all the costs incurred.
5. This act shall take effect immediately.
STATEMENT
N.J.S.A.9:2-2 provides that the Superior Court shall consider if children in divorce situations resident in this State (or who have resided here for five years) may move out of its jurisdiction against their own consent, if old enough to consent, or over the objection of one of the parents. The factors to be considered by the court and the relative burdens of proof on the custodial and non-custodial parent have been the subject of a line of New Jersey court decisions. These types of cases known as "removal cases" arise when the court has already adjudicated custody and has presumably assumed that both parents will continue to live in this State. The clear standard in cases determining custody is the best interests of the child. When the court later considers a removal case the parents' interests may take on a new dimension and be accorded some weight in the analysis.
This bill codifies relevant factors for analyses in removal cases as set forth by the New Jersey Supreme Court in Baures v. Lewis, 167 N.J. 91 (2001).
The sponsor has incorporated an additional requirement for these hearings because of the new considerations concerning the parents' possible motivations for moving and objecting to a move. The bill in section 4 provides that a court conducting a hearing in removal cases shall order a psychological evaluation of the custodial parent and the non-custodial parent at the request of either parent. The psychological report shall be made available to the court to assist the court in evaluating the past history of dealings between the parties as it may bear on the reasons given by both parents for supporting and opposing the move. The parent requesting that the court order the psychological evaluation shall be responsible for all the costs incurred.
