When the parents of a minor child live separately, or are about to do so, the Superior Court, in an action brought by either parent, shall have the same power to make judgments or orders concerning care, custody, education and maintenance as concerning a minor child whose parents are divorced. Until the court determines the final custody of the minor child and unless the parties agree otherwise, the court shall determine temporary custody based upon the best interests of the child with due regard to the caretaking arrangement that previously existed. No child shall be taken forcibly or against the will of the parent having custody by the other parent without a court order. If the child has not, at the time of the commencement of the action, reached the age of 16 years, and if it is represented to the court by affidavit or under oath that evidence will be adduced involving the moral turpitude of either parent, or of the minor child, or that evidence will be adduced which may reflect upon the good reputation or social standing of the child, then the court shall admit to the hearing of such case only such persons as are directly interested in the matter then being heard. The records of such proceedings, including all papers filed with the court, shall be withheld from indiscriminate public inspection, but shall be open to inspection by the parents, or their attorneys, and to no other person except by order of the court made for that purpose.

FACTORS TO BE CONSIDERED WHEN A PARENT WISHES TO MOVE OUT OF STATE WITH THE CHILDREN AFTER AN INITIAL CUSTODY DETERMINATION HAS BEEN MADE OR AGREED UPON

 

The New Jersey Supreme Court case of Baures v. Lewis, 167 N.J. 91 (2001) held that:

In assessing whether to grant custodial parent's application to remove child from jurisdiction over noncustodial parent's objection, court should look to following factors relevant to custodial parent's burden of proving good faith and that move will not be inimical to child's interest:

(1) reasons given for the move;

(2) reasons given for the opposition to the move;

(3) past history of dealings between the parties insofar as it bears on reasons advanced by both parties for supporting and opposing move;

(4) whether the child will receive educational, health, and leisure opportunities at least equal to what is available here;

(5) any special needs or talents of the child that require accommodation and whether such accommodation or its equivalent is available in the new location;

(6) whether a visitation and communication schedule can be developed that will allow the noncustodial parent to maintain a full and continuous relationship with the child;

(7) the likelihood that custodial parent will continue to foster the child's relationship with the noncustodial parent if the move is allowed;

(8) the effect of move on extended family relationships here and in the new location;

(9) if the child is of age, his or her preference;

(10) whether the child is entering his or her senior year in high school at which point he or she should generally not be moved until graduation without his or her consent;

(11) whether the noncustodial parent has ability to relocate;

(12) any other factor bearing on child's interest

NOTE: These factors are not used if the parties have actual joint residential custody determined by the amount of time that each parent spends with the child(ren), not by what the designation that the parties give to their parenting arrangement.

a. A grandparent or any sibling of a child residing in this State may make application before the Superior Court, in accordance with the Rules of Court, for an order for visitation. It shall be the burden of the applicant to prove by a preponderance of the evidence that the granting of visitation is in the best interests of the child.

b. In making a determination on an application filed pursuant to this section, the court shall consider the following factors:

(1) The relationship between the child and the applicant;

(2) The relationship between each of the child's parents or the person with whom the child is residing and the applicant;

(3) The time which has elapsed since the child last had contact with the applicant;

(4) The effect that such visitation will have on the relationship between the child and the child's parents or the person with whom the child is residing;

(5) If the parents are divorced or separated, the time sharing arrangement which exists between the parents with regard to the child;

(6) The good faith of the applicant in filing the application;

(7) Any history of physical, emotional or sexual abuse or neglect by the applicant; and

(8) Any other factor relevant to the best interests of the child.

c. With regard to any application made pursuant to this section, it shall be prima facie evidence that visitation is in the child's best interest if the applicant had, in the past, been a full-time caretaker for the child.

NOTE: The state of grandparent visitation is in flux as a result of the United States Supreme Court case of Troxel v. Granville, 530 US 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) and the New Jersey Appellate Division case Wilde v. Wilde, 341 N.J. Super. 381 (App. Div. 2001).  In Wilde, the Appellate Division held that the Grandparent Visitation Statute was unconstitutional as applied because (1) the grandparents had resorted to the courts before making substantial efforts to repair the breach between them and a fit parent, (2) had threatened litigation before visitation had been denied with finality, and (3) had mistreated the parent during the litigation by denouncing, demeaning, and impugning her character. While the grandparents in Wilde did not seek review of the Appellate Division’s decision, grandparents in Moriarty v. Bradt, et al., 174 N.J. 189, (2002) have been granted Certification by the New Jersey Supreme Court.  Note that the Appellate Division decision in Moriarty relied heavily on Wilde and Troxel in determining that the New Jersey Grandparent Visitation Statute was unconstitutional as applied where the trial court awarded the grandparents more than the natural father offered. This decision should be decided by the New Jersey Supreme Court in 2003.