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A New Jersey trial court recently held in the published (precedential) decision of McKinley v. Naters that it was appropriate under a given set of circumstances to allow for the pre-trial, temporary removal of a child to another state for what it described as “extended vacation purposes” to provide the child with a “reasonable opportunity . . . to experience living in the proposed new state prior to trial.”  When I read the court’s conclusion, which is briefly laid out on the first page of the Opinion, my first thought was the seeming tactical advantage that would inure to the parent seeking removal.   After a full review of the court’s conclusions and rationale, however, it seems that the interests of both parties were properly balanced so as not to provide leverage to one party over the other.    

The facts are relatively straightforward for a removal scenario.  The parties divorced in 2002 and the settlement agreement provided for shared residential custody of the child.  In May 2010, Mom filed a motion seeking to permanently relocate to Florida with the child.  She claimed that she and her present spouse sought to relocate there for employment reasons, the child would have greater educational opportunities in Florida, and he would “enjoy life” more in Florida than in New Jersey.  Dad opposed Mom’s motion and sought residential custody of the child.

A plenary hearing was scheduled to occur in August 2010 and, in the interim, the parties could attempt to mediate and conduct discovery.  A psychological expert was appointed by the court to perform a custody evaluation.  In June, Mom filed a motion seeking the court’s permission to “temporarily remove” the child from New Jersey to Florida for 4 weeks for “extended vacation” purposes, and so the child could obtain a “feel” for the new neighborhood in Florida.  Dad opposed the request.  Not surprisingly, each party claimed that the other’s position was nothing more than an effort to obtain an advantage in the litigation.

The court granted Mom’s request, but modified the time from 4 weeks to 2 weeks, also providing Dad with two weeks of such “extended vacation” in New Jersey.  The child’s age in this case – 15 years old – was of great import to the court in its decision, as well as the child’s capacity to reason.  The court found that, under every possible legal analysis in removal applications (including the Baures factors, factors for a change of custody analysis under N.J.S.A. 9:2-4, and N.J.S.A. 9:2-2), the child’s expressed preference was relevant to the court’s decision.   The court noted that none of the laws or cases cited prevent a child’s temporary removal from the jurisdiction for “legitimate purposes, particularly under court order.” 

As a result, the court found that its crafted resolution provided the child with a sensible, “reasonable opportunity” to experience life in both states under the care of each party prior to trial, rather than base any expressed preference on nothing more than speculation.  Since the child was 15, the court determined that he could inform the court of his preference during an “in camera” (in chambers) interview with the trial judge pursuant to Rule 5:8-6 of New Jersey’s Rules of Court.   The court also found its decision appropriate because it would not interfere with the child’s present schooling; Mom had no history of violating court orders or otherwise demonstrating a flight risk; and, by its resolution, Dad was provided with an “equitable opportunity” for the child to take an “extended vacation” in New Jersey as well during the pre-trial phase. 

Thus, the court’s decision was clearly fact-specific.  Had the situation involved a younger child, for instance, the court might have ruled differently.

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