Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

Can I Stop My Ex From Moving My Child Out Of New Jersey?

Yes, if a New Jersey Family Court finds that the move out of the state of New Jersey is not in the best interests of the child.  During my many years as a child custody attorney, I embrace that when one parent wants to move away to another state with the child, it can be devastating to the other parent as well as the child.  However, to do so, the parent wishing to relocate with the child, must file a removal motion.  A removal motion, or a motion to move out of state with the child, requires the court to examine the current parenting arrangement between the parents, and if the motion is really a removal action, or actually an action to change custody disguised as a removal motion. When both parents share joint physical and legal custody, the Family Part of the Superior Court of New Jersey reviews the case as a motion for a change in custody. Therefore, the burden is on the lawyer for the parent requesting the change in custody to prove that the change is in the best interest of the child.

In Ramineni v. Ramineni, mother, Kanchan Ramineni, appealed from the shared custody provisions in a dual judgment of divorce dated June 30, 2015, and a post-divorce order dated August 3 2015 that denied her motion to move to North Carolina with her four-year-old son. The New Jersey Appellate Division upheld both the dual judgment of divorce and the post-divorce order.

In 2009, Kanchan and Krishna, the child’s father, got married in India, and three years later had a son. The couple moved to New Jersey in 2010, for about six months, until Kanchan became pregnant. Kanchan then went back to India in 2011. Krishna visited India a few times to see wife and son, but Kanchan moved back to New Jersey permanently in June of 2013. Six months later, the couple filed for divorce after four years of marriage.

In April 2014, Kanchan took the child and moved to Connecticut. Krishna wished to live close to his son, and prepared to move to Connecticut, but Kanchan decided to move again to West Windsor, New Jersey, only five months after moving to Connecticut. Krishna then moved to West Windsor, only five or seven minutes away from Kanchan and his son. Soon after Kanchan moved back to New Jersey, a Family Part court issued a fifty/fifty parenting time schedule, and ordered that each parent would have the child on alternative weekends.

Krishna had two master’s degrees in business administration and mechanical engineering at the time of trial, and he was earning about $ 185,000 a year as a consultant. Kanchan only had a bachelor’s degree in engineering, and worked at a technology company as an assistant manager. She earned about $ 66,500 a year. At trial, a joint expert, Dr. Robert Rosenbaum, testified and recommended joint legal and physical custody. Joint legal custody is an arrangement where both parents share in the care of the child, and make decisions about the child’s welfare together. Shared physical custody is where the child has two homes, and spends at least 35% of his or her time with the other parent. Parents can also mutually agree to a special joint custody arrangement that is a combination of joint legal and shared physical custody. In a joint custody arrangement, it is vital for both parents to communicate, and make decisions that might affect the child’s welfare, together.

Unlike joint custody, sole custody is made up of only legal custody and physical custody, with no combination option, Only the parent with legal custody has the authority to make decisions about long term plans, education, religious upbringing, discipline, medical care, and any other decision that may affect the child’s welfare. A parent with physical custody lives with the child and has the right to make decisions regarding the child’s everyday needs. In sole custody only one parent has both legal and physical custody, and the child only has one main home.

Dr. Rosenbaum further stated that there was no reason for one parent to be designated the parent of primary residence, unless of course, one of the parents moved out the school district. The parent of primary residence is the parent whose house the child spends most of his or her time, and generally where the child spends more than 50% of the overnights. The parent of alternative residence, is the parent that the child lives with when not living in the primary house. The official definitions for both these terms come directly from the New Jersey Child Support Guidelines. The parent of primary residence is always the parent that receives child support, with the parent of alternative residence responsible for maintaining those payments on time. The parent of primary residence has a duty to keep the parent of alternative residence informed with what matters that could affect the child’s general welfare.

If one parent did move out of the school district, Dr. Rosenbaum recommended that the parent still living in the son’s school district should be designated as the parent of primary residence, in the interest of the child’s education. He also stated that he thought both parents had the ability to work together and co-parent their child.

While the trial was going on, Kanchan received a job offer from a company that would require her to move to Charlotte, North Carolina. As a result, she filed a motion be designated as the parent of primary residence, and for permission to relocate to North Carolina with the child. Krishna in turn, filed a cross-motion requesting the court to designate him as the parent of primary residence, or at the very least hold a plenary hearing about relocation. The Family Part court issued an order on June 8, 2015, and denied both parent’s requests to be designated as the parent of primary residence. The court also ordered that a plenary hearing be held about Kanchan’s relocation motion.

The Family Part court issued a dual judgment of divorce on June 30, 2015, and found that the parties had already mutually agreed to share joint custody of their child. After considering the expert testimony of Dr. Rosenbaum and his report, both parent’s past agreement to joint custody, and the fact that Krishna moved to be closer to his son, the Family Part refused to designate either parent as the parent of primary residence. A plenary hearing about the removal motion was held about a month later. The judge stated that the determination would be based on a best interest of the child analysis. Krishna argued that the relocation motion should be denied because Kanchan failed to establish a prima case that the relocation and change of custody would serve the child’s best interest. The court agreed and concluded that allowing Kanchan to move to North Carolina with the child, would not, in fact, be in the child’s best interest, because it was not in the child’s best interest to remove him from the fifty-fifty parenting time he had with his father.

On appeal, the New Jersey Appellate Division explained that a removal motion requires the court to examine the current parenting arrangement between the parents, and if the motion is truly a removal action, or actually a motion to change custody disguised as a removal motion. If a parties’ current custody arrangement designates one parent as the primary custodian, and the other as the secondary custodian, then a Baures analysis applies, but in Ramineni the parents shared joint physical and legal custody, and in such cases the Family Part reviews the case as a motion for a change in custody. Therefore, the burden is on the parent requesting the change in custody to prove that the change is in the best interest of the child.

The Family Part had found that Kanchan’s job instability was not in the best interest of the child. In fact, after considering the school and opportunities in North Carolina, and the lack of family there, a shared parenting arrangement was in the child’s best interest. Furthermore, Kanchan had moved many times for employment, while Krishna moved only to be closer to his son. The New Jersey Appellate Division stated that it would be unreasonable to permit Kanchan to move with the child again, right after Krishna moved to accommodate her new job in West Windsor. Therefore, the appellate panel held that Kanchan failed to prove that the relocation away from the child’s father would serve his best interest. The order of the Family Part was affirmed.  

Our law firm is here for you and your child.