Child Removal: A Matrimonial Litigator's Checklist

In matrimonial practice, the frequency of child removal litigation has increased exponentially. The growing number of corporate downsizings, business mergers and acquisitions, and the general growth in employment mobility are all likely to result in a continuation of this trend. This article, which provides a checklist of five areas of inquiry, is intended to help the family law litigator anticipate and prepare for the legal and factual issues presented when child removal is in issue.

Is there a removal statute? The first step in the process is to determine whether your jurisdiction has a controlling statutory provision. In New Jersey, for example, the removal of children is governed by N.J.S.A. 9:2-2. Pursuant to that statute, minor children who are 'natives' of New Jersey or have resided there for 5 years cannot be removed from the state without 'the consent of both parents, unless the court, upon cause shown, shall otherwise order.'

Is there a custody statute? Every removal case necessarily implicates the same issues that are likely to arise in a child custody setting. This being the case, the matrimonial litigator must examine and address the custody criteria set forth in his/her jurisdiction's applicable statute. For example, the controlling statute in New Jersey (N.J.S.A. 9:2-4) provides 14 specific factors:

' The parents' ability to agree, communicate and cooperate in matters relating to the child;
' The parents' willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse;
' The interaction and relationship of the child with his/her parents and siblings;
' The history of domestic violence, if any;
' The safety of the child and the safety of either parent from physical abuse by the other parent;
' The preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision;
' The needs of the child;
' The stability of the home environment offered;
' The quality and continuity of the child's education;
' The fitness of the parents;
' The geographical proximity of the parents' homes;
' The extent and quality of the time each parent spent with the child prior to or subsequent to the separation;
' The parents' employment responsibilities; and
' The age and number of the children.

What is the relevant case law? Naturally, there are leading cases in every jurisdiction governing the law of child removal, including such aspects as burden of proof and procedural concerns. For example, the beginning point of any removal case in New Jersey is an understanding of the leading cases, ie, Baures v. Lewis, 167 N.J. 91 (2001), Holder v. Polanski, 111 N.J. 344 (1988) and Cooper v. Cooper, 99 N.J. 42 (1984). Generally, the cases across the United States focus on the best interests of the child, considered against the background of the parents' reasons for advocating or opposing the removal.
What are the local procedural rules? No removal case can be prosecuted without a fundamental understanding of the litigation track. To ascertain this, the following issues should be addressed:

' Discovery. What discovery will be allowed? Will depositions be permitted? What is the procedure for deposing an out-of-state party or witness? What is the deadline for concluding discovery?
' Expert Witnesses. What psychological or other experts may be called? May those experts be subjected to pretrial depositions? Must those experts submit a written report in advance of trial?
' Involvement of State Agencies. Will state agencies be involved in monitoring or interviewing the parties or the child?
' Judge's Interview. Will or may a judge interview the child? On the record? May the interview be audio- or video-recorded? In chambers? Outside the presence of counsel? May counsel submit a line of questions or areas of inquiry ?
' Speed of Process. How quickly will the case be reached for trial?
' Counsel Fees and Costs. What is the procedure for compelling an award of pendente lite counsel fees and costs? How are counsel fees and costs assessed and awarded upon completion of the proceedings?
' Appeals Process. How are emergent and interlocutory appeals handled? How lengthy is the plenary appellate docket? Is there a means for accelerating or expediting matters involving child custody and removal?
What are the facts? There is literally no limit to the facts that bear on the 'best interests' of a child. In effect, the only limitations are the practical considerations of time and money and the resourcefulness of the client and the attorney, filtered through the law of evidence.

Child removal cases are as challenging as any other presented to the matrimonial practitioner. As in every other difficult litigation, early anticipation and thorough preparation cannot be over estimated. The checklist provided on page 3 should help in attaining these goals.

In matrimonial practice, the frequency of child removal litigation has increased exponentially. The growing number of corporate downsizings, business mergers and acquisitions, and the general growth in employment mobility are all likely to result in a continuation of this trend. This article, which provides a checklist of five areas of inquiry, is intended to help the family law litigator anticipate and prepare for the legal and factual issues presented when child removal is in issue.

Is there a removal statute? The first step in the process is to determine whether your jurisdiction has a controlling statutory provision. In New Jersey, for example, the removal of children is governed by N.J.S.A. 9:2-2. Pursuant to that statute, minor children who are 'natives' of New Jersey or have resided there for 5 years cannot be removed from the state without 'the consent of both parents, unless the court, upon cause shown, shall otherwise order.'

Is there a custody statute? Every removal case necessarily implicates the same issues that are likely to arise in a child custody setting. This being the case, the matrimonial litigator must examine and address the custody criteria set forth in his/her jurisdiction's applicable statute. For example, the controlling statute in New Jersey (N.J.S.A. 9:2-4) provides 14 specific factors:

' The parents' ability to agree, communicate and cooperate in matters relating to the child;
' The parents' willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse;
' The interaction and relationship of the child with his/her parents and siblings;
' The history of domestic violence, if any;
' The safety of the child and the safety of either parent from physical abuse by the other parent;
' The preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision;
' The needs of the child;
' The stability of the home environment offered;
' The quality and continuity of the child's education;
' The fitness of the parents;
' The geographical proximity of the parents' homes;
' The extent and quality of the time each parent spent with the child prior to or subsequent to the separation;
' The parents' employment responsibilities; and
' The age and number of the children.

What is the relevant case law? Naturally, there are leading cases in every jurisdiction governing the law of child removal, including such aspects as burden of proof and procedural concerns. For example, the beginning point of any removal case in New Jersey is an understanding of the leading cases, ie, Baures v. Lewis , 167 N.J. 91 (2001), Holder v. Polanski , 111 N.J. 344 (1988) and Cooper v. Cooper , 99 N.J. 42 (1984). Generally, the cases across the United States focus on the best interests of the child, considered against the background of the parents' reasons for advocating or opposing the removal.
What are the local procedural rules? No removal case can be prosecuted without a fundamental understanding of the litigation track. To ascertain this, the following issues should be addressed:

' Discovery. What discovery will be allowed? Will depositions be permitted? What is the procedure for deposing an out-of-state party or witness? What is the deadline for concluding discovery?
' Expert Witnesses. What psychological or other experts may be called? May those experts be subjected to pretrial depositions? Must those experts submit a written report in advance of trial?
' Involvement of State Agencies. Will state agencies be involved in monitoring or interviewing the parties or the child?
' Judge's Interview. Will or may a judge interview the child? On the record? May the interview be audio- or video-recorded? In chambers? Outside the presence of counsel? May counsel submit a line of questions or areas of inquiry ?
' Speed of Process. How quickly will the case be reached for trial?
' Counsel Fees and Costs. What is the procedure for compelling an award of pendente lite counsel fees and costs? How are counsel fees and costs assessed and awarded upon completion of the proceedings?
' Appeals Process. How are emergent and interlocutory appeals handled? How lengthy is the plenary appellate docket? Is there a means for accelerating or expediting matters involving child custody and removal?
What are the facts? There is literally no limit to the facts that bear on the 'best interests' of a child. In effect, the only limitations are the practical considerations of time and money and the resourcefulness of the client and the attorney, filtered through the law of evidence.

Child removal cases are as challenging as any other presented to the matrimonial practitioner. As in every other difficult litigation, early anticipation and thorough preparation cannot be over estimated. The checklist provided on page 3 should help in attaining these goals.