CHILD REMOVAL: A MATRIMONIAL LITIGATOR’S CHECKLIST
Charles C. Abut, Esq.
February, 2003

Introduction
In matrimonial practice, the frequency of child removal litigation has increased exponentially. The growing number of corporate downsizings, business mergers and acquisitions, and the general growth in employment mobility are all likely to continue this trend. This checklist of five areas of inquiry is intended to assist the family law litigator anticipate and prepare for the legal and factual issues presented when child removal is in issue.

A. Is there a Removal statute ? The first step in the process is to determine whether your jurisdiction has a controlling statutory provision. In New Jersey, for example, the removal of children is governed by N.J.S.A. 9:2-2. Minor children who are “natives” or have resided there for five years cannot be removed from the State without “the consent of both parents, unless the court, upon cause shown, shall otherwise order”.

B. Is there a Custody statute ? Every removal case necessarily implicates the same issues that are likely to arise in a child custody setting. This being the case, the matrimonial litigator must examine and address the custody criteria set forth in any applicable statute. For example, the controlling statute in New Jersey [N.J.S.A. 9:2-4] contains 14 specific factors :

1. The parents’ ability to agree, communicate and cooperate in matters relating to the child;
    
2. The parents’ willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse;
    
3. The interaction and relationship of the child with its parents and siblings;
    
4. The history of domestic violence, if any;
    
5. The safety of the child and the safety of either parent from physical abuse by the other parent;
    
6. The preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision;
    
7. The needs of the child;
    
8. The stability of the home environment offered;
    
9. The quality and continuity of the child’s education;
    
10. The fitness of the parents;
     
11. The geographical proximity of the parents’ homes;
     
12. The extent and quality of the time spent with the child prior to or subsequent to the separation;
     
13. The parents’ employment responsibility; and
     
14. The age and number of the children.

C. What is the relevant case law ? : Naturally, there are leading cases in every jurisdiction governing the law of child removal, including such aspects as burden of proof and procedural concerns. For example, the beginning point of any removal case in
New Jersey is an understanding of the leading cases [Baures v. Lewis, 167 N.J. 91 [2001], Holder v. Polanski, 111 N.J. 344 (1988) and Cooper v. Cooper, 99 N.J. 42 (1984).] Generally, the cases across the United States focus on the best interests of the child, viewed against the background of the parents’ reasons for advocating or opposing the removal.

D. What are the local procedural rules ? No removal case can be prosecuted without a fundamental understanding of the litigation track :

1. What discovery will be allowed ? Will depositions be permitted ? What is the procedure for deposing an out-of-state party or witness ? What is the deadline for concluding discovery ?
    
2. What psychological or other experts may be called ? May those experts be subjected to pretrial depositions ? Must those experts submit a written report in advance of trial ?
    
3. Will state agencies be involved in monitoring or interviewing the parties or the child ?
    
4. Will or may a Judge interview the child ? On the record ? May the interview be audio or video recorded ? In chambers ? Outside the presence of counsel ? May counsel submit a line of questions or areas of inquiry ?
    
5. How quickly will the case be reached for trial ?
    
6. What is the procedure for compelling an award of pendente lite counsel fees and costs ? How are counsel fees and costs assessed and awarded upon completion of the proceedings ?
    
7. How are emergent and interlocutory appeals handled ? How lengthy is the plenary appellate docket ? Is there a means to accelerate or expedite matters involving child custody and removal ?

E. What are the facts ? There is literally no limit to the facts which bear on the “best interests” of a child. In effect, the only limitations are the practical considerations of time and money and the resourcefulness of the client and the attorney, filtered through the law of evidence. In addition to the kinds of statutory child custody factors listed above, the following 25 questions are a beginning point for further case development.

1. What is the present and past mental and physical health of the child? What would health care providers testify about the proposed move?
    
2. To what extent do the children have special or extraordinary medical or physical or educational needs and to what extent can those needs be met and accommodated in the event of removal?
    
3. What is the preference of the child regarding the move? Is the court likely to consider testimony from the child? Typically, a four year old’s alleged preference will not be considered; typically, a fifteen year old’s preference will be.
    
4. What is the actual history of the prior parenting schedule? Have there been prior motions and proceedings pertaining to parenting disputes? To what extent do the parents have a present and past relationship which is otherwise reasonable or amicable, as opposed to hostile or dysfunctional?
    
5. Is there a prior parenting agreement or a court order? What are the designated guidelines and limitations, if any?
    
6. Does the child have extended family either in the home state or in the intended removal state? What is the nature of the relationship with the extended family?
    
7. To what extent does the child have relationships with playmates, friends and neighbors? To what extent can these relationships be continued or replicated in the event of relocation?
    
8. What are the child’s educational needs and interests? What are the differences between the existing and the intended schools? What are the child’s academic performance records? What would the child’s teachers testify about the proposed move?
    
9. What are the child’s after-school activities and interests, such as teams, sports, clubs, hobbies, and scouting? To what extent can these activities be continued in the relocation state?
    
10. Is there a sincere, good faith reason for the parent’s move? Is there more than one such reason?
     
11. What is the reason for the opposition to the move? Is there more than one such reason?
     
12. What is the existing parenting schedule, and how would that schedule be changed by the move? How have holidays, vacations and school recesses been handled in the past?
     
13. If the move were granted, to what extent could additional parenting time be structured in favor of the parent opposing the move?
     
14. What are the current employment and other economic circumstances of each parent? How would those circumstances be impacted in the event of removal?
     
15. What is the cost of living in the home state compared with the relocation state?
     
16. What are the increased travel costs (if any) compared to the (presumed) decreased weekly parenting expenses to the nonrelocating parent?
     
17. To what extent has the nonrelocating parent fulfilled or failed to fulfill her or his child support or alimony obligations?
     
18. What is the distance between the home state and the removal state?
     
19. What is the recommendation of the guardian ad litem?
     
20. What are the recommendations of any court-appointed or privately retained mental health experts?
     
21. What is the testimony of treating mental health practitioners, whether of the parties or of the child?
     
22. What are the tangible and intangible factors (such as lifestyle, climate, standard of living, environmental, congestion, crime, etc.) that make up the “quality of life” in the home state as compared with the proposed relocation state?
     
23. Has either parent remarried, or to what extent does either parent have a relationship with another intended life partner? To what extent does such a relationship impact upon the child’s present and future?
     
24. To what extent has religion played a factor in the child’s prior upbringing?
     
25. Would it be feasible or practical for the nonrelocating parent to also move to the intended relocation state?

Conclusion
Child removal cases are as challenging as any other presented to the matrimonial practitioner. As in every other difficult litigation, thorough preparation and early anticipation cannot be over estimated. Use of this checklist should be of help toward these goals.

Charles C. Abut practices in Hackensack and Springfield, New Jersey. He is  a Certified Matrimonial Attorney and a Fellow of the American Academy of Matrimonial Attorney. He has been designated by the New Jersey Supreme Court as a Certified Matrimonial Attorney from 1998-2007 and as a Certified Civil Trial Attorney from 1984-1998.