Can a Father Move His Child To Another State Away From the Mother?
Full Question:
Answer:
In the absence of a court order determining rights of custody or visitation to a child, a person having a right of custody of the child commits the crime of parental kidnapping if he removes, takes, detains, conceals, or entices away that child within or without the state, without good cause, and with the intent to deprive the custody right of another person or a public agency also having a custody right to that child. Interference with custody is a crime governed primarily by state laws, which vary by state, and seeks to protect parental custody against unlawful interruption. It is intended to address long-term interference with child custody rights.
Please see the following links for further discussion:
http://singleparents.about.com/od/legalissues/f/relocation_move.htm
http://www.womansdivorce.com/relocation-and-child-custody.html
Please see the following NJ statute:
2C:13-4 Interference with custody.
a. Custody of children. A person, including a parent, guardian or
other lawful custodian, is guilty of interference with custody if
he:
(1) Takes or detains a minor child with the purpose of concealing
the minor child and thereby depriving the child's other parent of
custody or parenting time with the minor child; or
(2) After being served with process or having actual knowledge of an
action affecting marriage or custody but prior to the issuance of a
temporary or final order determining custody and parenting time rights to
a minor child, takes, detains, entices or conceals the child within or
outside the State for the purpose of depriving the child's other parent
of custody or parenting time, or to evade the jurisdiction of the courts
of this State;
(3) After being served with process or having actual knowledge of an
action affecting the protective services needs of a child pursuant to
Title 9 of the Revised Statutes in an action affecting custody, but prior
to the issuance of a temporary or final order determining custody rights
of a minor child, takes, detains, entices or conceals the child within or
outside the State for the purpose of evading the jurisdiction of the
courts of this State; or
(4) After the issuance of a temporary or final order specifying
custody, joint custody rights or parenting time, takes, detains, entices
or conceals a minor child from the other parent in violation of the
custody or parenting time order.
Interference with custody is a crime of the second degree if the child
is taken, detained, enticed or concealed: (i) outside the United States
or (ii) for more than 24 hours. Otherwise, interference with custody is a
crime of the third degree but the presumption of non-imprisonment set
forth in subsection e. of N.J.S. 2C:44-1 for a first offense of a crime
of the third degree shall not apply.
b. Custody of committed persons. A person is guilty of a crime of the
fourth degree if he knowingly takes or entices any committed person away
from lawful custody when he is not privileged to do so. "Committed
person" means, in addition to anyone committed under judicial warrant, any
orphan, neglected or delinquent child, mentally defective or insane
person, or other dependent or incompetent person entrusted to another's
custody by or through a recognized social agency or otherwise by
authority of law.
c. It is an affirmative defense to a prosecution under
subsection a. of this section, which must be proved by clear and convincing
evidence, that:
(1) The actor reasonably believed that the action was necessary to
preserve the child from imminent danger to his welfare. However, no
defense shall be available pursuant to this subsection if the actor does
not, as soon as reasonably practicable but in no event more than 24 hours
after taking a child under his protection, give notice of the child's
location to the police department of the municipality where the child
resided, the office of the county prosecutor in the county where the
child resided, or the Division of Youth and Family Services in the
Department of Children and Families;
(2) The actor reasonably believed that the taking or detaining of the
minor child was consented to by the other parent, or by an authorized
State agency; or
(3) The child, being at the time of the taking or concealment not less
than 14 years old, was taken away at his own volition and without purpose
to commit a criminal offense with or against the child.
d. It is an affirmative defense to a prosecution under subsection a. of
this section that a parent having the right of custody reasonably
believed he was fleeing from imminent physical danger from the other
parent, provided that the parent having custody, as soon as reasonably
practicable:
(1) Gives notice of the child's location to the police department of
the municipality where the child resided, the office of the county
prosecutor in the county where the child resided, or the Division of Youth
and Family Services in the Department of Children and Families; or
(2) Commences an action affecting custody in an appropriate court.
e. The offenses enumerated in this section are continuous in nature and
continue for so long as the child is concealed or detained.
f. (1) In addition to any other disposition provided by law, a person
convicted under subsection a. of this section shall make restitution of
all reasonable expenses and costs, including reasonable counsel fees,
incurred by the other parent in securing the child's return.
(2) In imposing sentence under subsection a. of this section the court
shall consider, in addition to the factors enumerated in chapter 44 of
Title 2C of the New Jersey Statutes:
(a) Whether the person returned the child voluntarily; and
(b) The length of time the child was concealed or detained.
g. As used in this section, "parent" means a parent, guardian or
other lawful custodian of a minor child.
