For decades, when a custodial parent wanted to move out of state, it would not be unusual to hear that if the court or other party won’t let me leave New Jersey, she will just move to Cape May, or some other point far away from North or Central Jersey.  When someone wanted to move just across the river to New York or Pennsylvania, you might hear an exasperated utterance about being able to move to Cherry Hill but not 10 miles away to New York City.

And by and large, that was the law.  That is, while a court could restrict a custodial parent from removing children from the State of New Jersey, there was little stopping them from intrastate moves.  While there was case law that said that that might be a change of circumstances if it impacts the non-custodial parent’s parenting time, by and large people were free to move about the state.  In fact, about a dozen years ago, I had a case where the ex-husband file a motion seeking to prevent my client from moving from Hudson County to Monmouth County.  After getting our brief wherein we presented the law, his story changed from the mother being the parent of primary residence (as set forth in the parties’ Agreement, to him being the “de facto Parent of Primary Residence.”  The trial did not go well for him and my client moved as was her right.

Just as the Bisbing case that we previously blogged on made it much more difficult for the custodial parent to move out of state, the paradigm of the custodial parent being permitted to move, without restriction, was seemingly ended on October 7, 2019, when the Appellate Division rendered the reported (precedential) opinion in A.J. v. R.J. 

In A.J., the parties were divorced in 2013.  They had two children who were 10 and 8.  The mother was the parent of primary residence and the father had alternate weekend (Friday to Sunday)  and Wednesday overnight parenting time – 4 out of 14 overnights which my what is often seen these days, is not much.  The mother remarried and had a third child, with whom she lived with her husband and two other children in a two bedroom apartment in Elizabeth.  She moved in March 2018, because her landlord increased the rent and would not give her additional time to search for another residence before doing so. She searched without success for a suitable residence in Elizabeth,Somerset, and Florence. Prior to the move, the parties only had one text conversation in July 2017, in which the mother stated that she wished to move and was searching locally and as far as Mount Laurel and the father asked her to remain local because it  he claimed would be unfair to him and the children to move far away.

After the move, the father filed an Order to Show Cause seeking to block the move and change custody. The Judge entered an order giving him 3 weekends a month, ordered mediation and scheduled a plenary hearing to determine whether the mother would be permitted to remain in Mount Holly and also ordered that the children remain in school in Elizabeth.  Mediation was unsuccessful and after a plenary hearing, the trial judge ordered the mother had to return with the children and live within 15 miles of Union.   As noted by the Appellate Division:

Significantly, although the judge’s decision recognized “Baures . . . has since been overruled by Bisbing,” his reasoning relied upon our decision in Schulze v. Morris, 361 N.J. Super. 419 (App. Div. 2003), which applied the Baures factors to determine whether a parent could relocate intra-state. Applying a preponderance of the Baures factors, the trial judge explained “[p]laintiff’s decision may not have been solely driven by a desire to alienate the children from their father, but was certainly done in wanton disregard of his rights, with the result being that his relationship with them will clearly suffer.” The judge concluded the distance between the parties’ residences increased the travel time from “minutes away” to “slightly over an hour[.]” The judge noted if the children resided in Mount Holly defendant could no longer leave work early to tend to a sick child, enjoy additional parenting time, or attend extracurricular activities as he had in the past. The judge found the surreptitious nature of the move belied plaintiff’s explanation that she did not inform defendant because she did not have time.

The mother failed to move back, claiming it was impossible for her to break her lease and she could not afford two homes.  The father filed an Order to Show Cause seeking a transfer of custody which was granted and the mother appealed.

As to the mother’s argument that changing custody as a sanction was inappropriate, the Appellate Division disagreed.  However, in this case, additional proceedings and findings were necessary in order to do so.  Specifically, the Court held:

However, we hold Rule 5:3-7(a)(6) requires a separate adjudication, which considers the children’s best interests and findings pursuant to N.J.S.A. 9:2-4, before the sanction is ordered. Additionally, because the relief granted under Rule 5:3-7(a) is coercive in nature and derived from Rule 1:10-3, the sanctioned parent may seek termination of the sanction when the parent complies with the court’s order. The court should be solicitous of such applications.

This is because custody matters directly impact the welfare of children. The designation of a parent of primary residence is a consequential decision because “the primary caretaker has the greater physical and emotional role” in a child’s life. Pascale v. Pascale, 140 N.J. 583, 598 (1995). Where there is already a judgment or an agreement affecting custody in place, it is presumed
it “embodies a best interests determination” and should be modified only where there is a “showing [of] changed circumstances which would affect the welfare of the children.” Todd v. Sheridan, 268 N.J. Super. 387, 398 (App. Div. 1993). In the context of a transfer of child custody as a sanction, affording both parents the ability to address whether a transfer of custody is i n
the best interests of the children and requiring the court to make the necessary statutory findings provides the necessary process and a reviewable record. Therefore, a best-interest hearing and findings pursuant to N.J.S.A. 9:2-4 is required where a court transfers custody as a sanction

Here, because the trial court did not consider the best interest facts before changing custody, that part of the Order was reversed and remanded.

The Appellate Division also reversed the relocation decision because the court used the prior standard (Baures) instead of Bisping.  The Appellate Division note: “Because the science and anticipated outcomes undergirding the Baures factors have not borne out as the Court anticipated and no longer apply to interstate removals, they should not apply to the intra-state relocations discussed in Schulze.”

The Appellate Division then set forth the new standard to be followed for intra-state relocations, as follows:

We further hold where a parent of primary residence seeks an intrastate relocation and the parent of alternate residence opposes it, the parent of alternate residence must convince the court the move constitutes a change in circumstance affecting the best interests of the children. If a prima facie case is established, the trial court must assess custody and parenting time, by applying the N.J.S.A. 9:2-4 factors to determine whether the best interests of the children requires a modification of one or both.

It is interesting that the parent of alternate residence bears the burden of showing that the move is not in the children’s best interests even though they aren’t the one seeking the change.  On the other hand, the custodial parent’s ability to move, which may have certain constitutional implications, is being hampered and in fact, a 15 mile radius clause is being imposed on her when the non-custodial parent can move anywhere he wants.   In this case, the non-custodial parent had only minimal parenting time.  The move really only implicated the mid week overnight.  Why wasn’t the interim relief of an extra weekend  per month, or some extra time during the summer, enough to address the issue?  Given that only one day per week was implicated, why wasn’t the radius clause larger given the mother’s clear financial distress?  It is one thing where 50-50 or substantial parenting time (5 or 6 out of 14 overnights every two weeks), but when it is 4 out of 14  – which is the minimum to have technical “shared parenting” as defined by the child support guidelines, or less, should a custodial parent really need court approval?

My guess is that one or both parties will see Certification to the Supreme Court. Stay tuned.

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Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973) 994-7501, or esolotoff@foxrothschild.com.