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Removal issue

  • 1.  Removal issue

    Posted 02-04-2015 11:21 AM
    If child of divorced parents is a minor, is there any age of the child over which, under NJSA or case law, that allows the custodial parent to remove the child without the other parent's consent or a court order permitting the removal? Or does an application always have to be made where the non-custodial parent does not consent to the removal?

    ------------------------------
    Robert Goldstein Esq.
    Manalapan NJ
    (732)972-1600
    ------------------------------


  • 2.  RE: Removal issue

    Posted 02-04-2015 11:28 AM
    I was recently asked a similar question, except that the "child" in question
    was a disabled and unemancipated 35 year old man.



    Andrew J. Economos, Esq.
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  • 3.  RE: Removal issue

    Posted 02-04-2015 11:29 AM
    bob

    Last time I look at the statute, there was no age limitation. I believe that as long as the child is a minor, you need to file the application.

    Alice M. Plastoris, Esq.
    82 Speedwell Avenue
    Morristown, New Jersey 07960
    973-538-7070
    973-538-7088 Fax
    [email protected]<mailto:[email protected]>


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  • 4.  RE: Removal issue

    Posted 02-04-2015 11:36 AM

    Alice:

     

    That's always been my understanding but if you look at the statute, the wording is nebulous concerning "suitable age":

     NJSA 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. 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."

    ------------------------------
    Robert Goldstein Esq.
    Manalapan NJ
    (732)972-1600
    ------------------------------


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  • 5.  RE: Removal issue

    Posted 02-04-2015 11:43 AM
    Consent of both parents is the trigger

    Albertina Webb, Esq. , Wilentz, Goldman & Spitzer, P.A., 90 Woodbridge Center Drive, Suite 900, Box 10, Woodbridge, New Jersey 07095-0958 - (732) 855-6162; Fax: (732) 726-4707


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  • 6.  RE: Removal issue

    Posted 02-04-2015 11:45 AM
    It is fact sensitive (unless there is a case that defines "suitable age"). My guess is if the child is in college and technically not emancipated, the child can choose and no application may need to filed. the other example posted was a "disabled" adult child that cannot live on his/her own I would think an application would have to be made.

    Alice M. Plastoris, Esq.
    82 Speedwell Avenue
    Morristown, New Jersey 07960
    973-538-7070
    973-538-7088 Fax
    [email protected]<mailto:[email protected]>


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  • 7.  RE: Removal issue

    Posted 02-04-2015 11:58 AM
    I have successfully argued that a child age 15 was of "suitable age" to consent to the relocation over the objection of the other parent without the need for a Baures hearing. I relied upon an old Judge Krafte case, Kavrakis v. Kavrakis, 196 N.J. Super. 390 (Ch. Div. 1984), that says age 14 is a prima facie starting point for determining whether the child is of "suitable age". These other cases are also helpful in highlighting that a child over age 14 should have tremendous input regarding where they live and what parenting time schedule should be followed, and are useful when making the argument: D.W. v. P.W., WL 587099 (unpublished App. Div. 2009) (Appellate Division affirming Judge Fleming's decision that a 15 year old child could decide when she visits with the non-custodial mother); Mackowski v. Mackowski, 317 N.J.Super. 8 (App. Div. 1998)(A 16 year-old child's request to live with the other parent constitutes a prima facie showing of changed circumstances warranting a review of the custodial arrangement).

    _____________________________________
    Brian G. Paul, Esq.
    Certified Matrimonial Law Attorney
    Szaferman, Lakind, Blumstein & Blader, P.C.
    101 Grovers Mill Road
    Lawrenceville, New Jersey 08648
    Phone: 609-275-0400
    Direct Fax: 609-779-6065
    [email protected]<mailto:[email protected]>

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  • 8.  RE: Removal issue

    Posted 02-04-2015 12:37 PM

    Brian:

     

    "Tremendous input" is one thing. However, most 14 year olds today are not of sufficient maturity to be vested with such a decision which may not be in their best interests.

     

    I agree the judge can determine what suitable age means, perhaps even without a Baures hearing, but the issue here is whether, if a 15 or 16 year old says I want to move with the primary custodial parent now (in the middle of the school year) with no overriding reason for the immediate move, whether the primary custodial parent can just do it without consent or a court order.

     

    I still think the answer to that is "no."

    ------------------------------
    Robert Goldstein Esq.
    Manalapan NJ
    (732)972-1600
    ------------------------------


    Original Message


  • 9.  RE: Removal issue

    Posted 02-04-2015 12:47 PM
    When I had the issue, I filed a Notice of Motion requesting that the Court render a finding that the 15 year old was of suitable age to consent under 9:2-2, and to render a legal conclusion that she was therefore permitted to relocate under the statute without the other parent's consent or the court's permission. As alternative relief, I asked for the Court to schedule the matter for a Baures hearing. The court went with option number one after interviewing the child.

    I would never advise a client to simply pick up and move out of state over the other parent's objection.

    _____________________________________
    Brian G. Paul, Esq.
    Certified Matrimonial Law Attorney
    Szaferman, Lakind, Blumstein & Blader, P.C.
    101 Grovers Mill Road
    Lawrenceville, New Jersey 08648
    Phone: 609-275-0400
    Direct Fax: 609-779-6065
    [email protected]<mailto:[email protected]>

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  • 10.  RE: Removal issue

    Posted 02-04-2015 11:55 AM
    What about case of a visit to mom's native country under auspices of a family reunion? Grandmother intends to move back there permanently; mom retains her citizenship and owns property there . Child is 11 and wants to compete in his hockey state championships here but will miss them if he goes. Dad is team coach. He does not consent. They have joint legal custody. Mom filed OSC

    Marcia DePolo, Esq.
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  • 11.  RE: Removal issue

    Posted 02-05-2015 07:47 AM
    Read Kavrakis v. Kavrakis, 196 N.J.Super. 385,391-392 (Ch. Div. 1984), cited on pages 389 and again on 425 of Relationships Involving Children (GANN). It's an older Chancery level case and the presumptive age Judge Kraft cam up with was 14. However, later enters Baures v. Louis, incorporating that consideration as (9) in a non-exhaustive list of (12). Accordingly, Baures/Morgan is the case law that must be employed. Kavrakis is far from dispositive.

    ------------------------------
    Curtis Romanowski Esq.
    Senior Attorney - Proprietor
    Metuchen NJ
    (732)603-8585
    ------------------------------


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  • 12.  RE: Removal issue

    Posted 02-05-2015 06:56 PM
      |   view attached
    For my two cents worth, I think Curt, as usual, is right. I thought the same thing when I was going through the thread yesterday. Baures is really the "new" dispositive law on 9:2-2.





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  • 13.  RE: Removal issue

    Posted 02-06-2015 11:36 AM
      |   view attached
    For my two cents worth, I think Curt, as usual, is right. I thought the same thing when I was going through the thread yesterday. Baures is really the "new" dispositive law on 9:2-2.





    Mark F. Saker, Esquire

    Attorney ID #271831971
    ______________________________







    Monmouth Executive Center

    100 Willow Brook Road, Suite 150

    Freehold, NJ, 07728



    Please reply to:

    819 Route 33

    Freehold, New Jersey 07728



    [email protected]

    Main: 732-414-0300

    Direct: 732-431-5000
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  • 14.  RE: Removal issue

    Posted 02-04-2015 12:06 PM

    Robert,

    The Statute contains a blanket prohibition with regarding the removal of a child from the State.  It does not contain any exception based on the age of the child nor does it distinguish between a temporary vs. permanent removal (I have had a case where a parent sought a denial of parenting time because the non-custodial parent was planning to take the child on an overnight trip to Hersey Park).  That is why all of our MSAs/parenting plans have that clause that allow for vacations with a child out of State for periods of less than a specified time without the consent of the other parent.  I do not know of any case law that states that consent is required only in circumstances where a child is under a specified age.

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    Nancy Marchioni Esq.
    Middlesex NJ
    (732)667-3668
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