Agreeing not to move out of state with the kids seemed like a good idea at the time. The divorce itself was hard enough, and the last thing you wanted to do was take them away from their school, friends and other family members. You and your spouse agreed that regular contact with both parents was essential, and the best way to make that happen was to live within a reasonable distance from each other. So, you agreed to a parenting plan in which you retain primary custody, on the condition that you remain in New Jersey for a set number of years.
Life, however, is not so neat and predictable. As they years go on, you may be presented with personal and professional opportunities that require you to move out of state, but can you do so based on the terms of the existing divorce agreement? In short, the answer is yes, since no existing court order is set in stone. Judges recognize that changes occur in the lives of parents and their children, which may result in adjustments to custody, alimony, child support and other pre-existing orders.
The long answer, however, is a lot more complicated. Taormina Bisbing v. Bisbing illustrates many of these complexities, including the applicant's intentions, i.e, whether he or she is acting in good faith. In Taormina, the divorce agreement stated that the parties would “make every effort to live in close proximity”, and that neither party “shall permanently relocate with the Children from the State of New Jersey without the prior written consent of the other.” In 2015, however, the wife became engaged to a Utah resident, and told her husband of her intention to relocate, but the husband refused to give permission for the children to move with her.
After unsuccessful attempts at mediation, the wife took the kids to Utah for “vacation” and decided to stay there permanently. This sounds rather suspicious on her part, but at this point, it wasn't as simple as ordering her to bring the kids back. The court would first need to consider whether she acted in good or bad faith at the time of the non-relocation agreement. If she deliberately agreed to the terms with the intent of manipulating the system later on (bad faith), the courts would need to use the best interests standard to determine whether the move should be allowed. If, however, she made the agreement without any manipulative intent or pre-knowledge, the court would need to decide whether it was in the children's best interests to relocate with their mother, or reassign primary custody to the father.
While most relocation motions are not this complicated, many parents do sign off on agreements that they later come to regret. Modifications can be made, but it's best to work with an experienced attorney to ensure that you take the proper steps. For more information on custody modifications in New Jersey, please speak with the attorneys of Villani & DeLuca, P.C.
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