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The Evolution Of Removal Law

In the seminal case of Chen v. Heller, 334 N.J. Super. 361 (App. Div. 2000), the Appellate Division held that where an application by a parent to remove a child outside of New Jersey without their spouse’s consent is akin to an application for a custody modification, a higher standard must be met. 

In prior cases such as Cooper v. Cooper, 99 N.J. 42 (1984) and Holder v. Polanski, 111 N.J. 344 (1988), the initial burden was placed on the custodial parent (who was presumed to be the parent seeking the move) to show a “real advantage” to the proposed move.

Now, with the potential that a non-custodial parent could also attempt to relocate with a minor child, the Appellate Division in Chen v. Heller has updated the requirements for removal.

Not only does a party have to meet the aforementioned “real advantage,” or “good faith reason” standard, but they must also show that the move is in the “best interests” of the child.  The burden of proof is on the party seeking to remove the child, which is in essence a custody modification.

The law of removal will likely continue to evolve and adapt to changing realities of custody arrangements.

by Rob Siegel, Esq.

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