When you divorce the mother or father of your children, you may feel a strong desire to make sure that both of you have an active and hands-on role in raising your children. Some parents may promise to continue living near each other and may even put that promise in writing in their marital settlement agreements. Living nearby one another can be an excellent way to raise a child post-divorce but, if your life’s circumstances have thrown an unexpected complication into those plans, be sure your rights and your relationship with your child are protected to the fullest by retaining a skilled Hoboken family law attorney.
There are lots of situations where parents living close to one another would be beneficial for the children. That’s especially true if both of you seek to share joint physical custody of the child. This kind of arrangement may call for each parent to have the child for alternating weeks. Other variations of this include calling for one parent to have the child 4 days and the other 3 days in one week and then to reverse those numbers in the following week.
This arrangement often is successful, at least for as long as both parents stay put. When one or the other finds it desirable or necessary to move, then things can become complicated. In early 2020, for example, the Appellate Division court addressed exactly one of those child custody scenarios.
The father was a former NFL player for one of the area’s teams who was married to his wife for 17 years. For the majority of the marriage, the couple resided in New Jersey. After their divorce, the parents had joint legal and physical custody. The mother, at some point, received an offer to work at her father’s car dealership… in Chicago.
When you’re going from an arrangement where you and your ex have joint legal and physical custody to an arrangement where one of you wants to move out out-of-state with the kids, the parent seeking to move with the children must obtain approval from the court.
The factors the court uses for the ‘best interest of the child’
To get that approval, the parent seeking to move with the kids has to show that the move would be in the best interest of the children. When the judge does that “best interest” analysis, he/she will look at several factors. That long list of criteria, which is spelled out in the state statutes, includes: “the geographic proximity of the parents’ homes,” “the extent and quality of the time spent with the child prior to or subsequent to the separation,” “the quality and continuity of the child’s education” and “the parents’ employment responsibilities,” among other things.
It is also important to recognize that you (or your ex) may have to get court approval even if the move isn’t out of state. Say, for example, you and your ex-spouse have joint legal and physical custody of a school-age child, and your ex seeks to move from Weehawken to Atlantic City. If you live in Hoboken, that would mean having your child 2 hours away from your home instead of just 10 minutes away. It would also mean, in all likelihood, that your current custody arrangement would cease being functional, and a new arrangement would need to be ironed out.
Living arrangements and the marital settlement agreement
If it is your strong desire to facilitate an arrangement where both of you live close to one another, one option you have relates to your marital settlement agreement. The law gives you many options when it comes to customizing contracts, including marital settlement agreements. That means you can include a clause in the settlement agreement that says you and your child’s other parent will live close to one another.
For example, in a very important 2017 child custody case, the parents had a provision in their settlement agreement that said that “neither party shall reside with the minor children more than 15 minutes away from the other parent.” Because those parents obtained a court order incorporating that provision, the clause had the force of law, and a parent who wanted to move either had to get prior court approval or potentially face punishment for contempt of court.
What all this can tell you is that there are many ways to approach the rearing of your child post-divorce. A plan for joint physical custody and two homes very near each other may be a strong plan, but it may lose its viability if one parent feels an urge to move. Whether you need to create a marital settlement agreement that discusses where each parent will live, to seek court permission to move with the children or have other custody-related needs, count on experienced Hoboken family law attorney Frank Marciano to provide you with the strong advocacy you need to protect your rights and ensure the continued growth of your relationship with your child. To set up a consultation and find out how we can help, contact the office online or call 201.656.1000.