NJ DIV. OF YOUTH & FAM. SERV. v. TM, 399 N.J. Super. 453 (App. Div. 2008) January 18, 2008:

N.J.S.A. 3B:12A-4(a)(1) provides:
A kinship legal guardian shall have the same rights, responsibilities and authority relating to the child as a birth parent, including, but not limited to: making decisions concerning the child’s care and well-being; consenting to routine and emergency medical and mental health needs; arranging and consenting to educational plans for the child; applying for financial assistance and social services for which the child is eligible; applying for a motor vehicle operator’s license; applying for admission to college; responsibility for activities necessary to ensure the child’s safety, permanency and well-being; and ensuring the maintenance and protection of the child.

The underlying purpose of KLG is to “formalize the status of a relative who agrees to take on responsibility for a child, [see N.J.S.A.] 3B:12A-4a(1), and can remain in place throughout the child’s minority, [N.J.S.A.] 3B:12A-4a(6).” N.J. Div. of Youth and Family Servs. v. P.P., 180 N.J. 494, 510, 852 A.2d 1093 (2004). In that status, certain parental rights and responsibilities are transferred to the caregiver, who becomes legally responsible for the care and protection of the child and for providing for the child’s health, education and maintenance in the same manner as biological parents. KLG, however, does not terminate parental rights and parents, for example, remain obligated to pay child support, N.J.S.A. 3B:12A-4(a)(3), and retain visitation rights, N.J.S.A. 3B:124(a)(4).

By reserving to parents visitation rights, the Legislature codified its intent that the permanent and self-sustaining nature of KLG is not intended to supplant the right of parents to maintain “some ongoing contact with the child[.]” N.J.S.A. 3B:12A-1(b). Consequently, in our view, the kinship legal guardian may not take action that effectively terminates a parent’s visitation rights without first demonstrating to the court that the action, irrespective of its impact, is in the best interest of the child.

N.J.S.A. 9:2-2 provides:
When the Superior Court has jurisdiction over the custody and maintenance of the minor children of parents divorced, separated or living separate, and such children are natives of this State, or have resided five years within its limits, they shall not be removed out of its jurisdiction against their own consent, if of suitable age to signify the same, nor while under that age without the consent of both parents, unless the court, upon cause shown, shall otherwise order. The court, upon application of any person in behalf of such minors, may require such security and issue such writs and processes as shall be deemed proper to effect the purposes of this section.

In Baures v. Lewis, 167 N.J. 91, 770 A.2d 214 (2001), the Court held that the custodial parent, who in this case, by virtue of N.J.S.A. 3B:12A-4(a)(1), is L.C., must prove a good faith motive for the relocation and also that the move will not be inimical to the best interest of the child. Id. at 116. The Court provided twelve factors that courts must consider before allowing a custodial parent to remove a child from New Jersey without the consent of the non-custodial parent:

(1) the reasons given for the move;
(2) the reasons given for the opposition;
(3) the past history of dealings between the parties insofar as it bears on the reasons advanced by both parties for supporting and opposing the 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 the custodial parent will continue to foster the child’s relationship with the noncustodial parent if the move is allowed;
(8) the effect of the move on extended family relationships here and in the hew 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 the ability to relocate;
(12) any other factor bearing on the child’s interest.
[Id. at 116-117, 770 A.2d 214.]

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

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