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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.