We have all grappled with the fact that former spouses move, and oftentimes, a residential parent wants to take the children with her or him. While we have previously discussed the issue of removal in other posts, a recent decision discusses the issue of which court a parent must look to in the case of a problem after the move.
In the unreported decision ( non-precedential) of Horton v. Horton, at the time of the parties’ divorce in 2008, the father agreed that the mother could move to South Carolina with the minor children. She relocated between the time of divorce, and 2010. Sometime thereafter, the father encountered difficulties in exercising his parenting rights and sought assistance from the courts in New Jersey. Because it initially entered the custody determination, the Family Part could modify its determination so long as it retained what is known as exclusive, continuing jurisdiction. The Horton court noted that only a New Jersey court can determine that New Jersey has lost jurisdiction based on a lack of significant connection and substantial evidence.
When the issue of whether custody type decisions should be moved to a different state arises, the focus becomes which state has the most significant connection with the children. This includes access to information about the children, including school and health records, location of witnesses with current information about the children, and location of experts who may be involved with the children. A court also must focus on the relationship between the child and the parent remaining in the state. When that relationship becomes too attenuated, jurisdiction is lost. In short, substantial evidence is needed of the children's care, protection, training, and personal relationships within this state.
It was noted by the court in remanding to the trial level, in all likelihood, the children’s significant connections were in South Carolina. The lesson to be learned here is to be mindful of the fact that once a move occurs, the remaining parent will probably have to seek counsel or assistance in a state other than New Jersey in the event of an issue down the road. This should be considered when negotiating a request to move. Perhaps, you can demand that the agreement require that New Jersey retain jurisdiction and that the other party cannot ever seek to change jurisdiction if the left behind parent is still in New Jersey (though this may not be enforceable).