One thing is abundantly clear when it comes to child custody cases in New Jersey. The best interests of the child weigh heavily in every court decision. Therefore, it should be no surprise that the court considers those same best interests when it comes to in-state relocation of children.
In New Jersey, NJSA 9:2-2 provides the law concerning the custody of children of divorced or separated parents and removing them from the state. The Superior Court retains jurisdiction if the children are New Jersey natives or have resided here for five years. However, the statute doesn’t specify what happens when it comes to in-state relocation.
Last year, the Appellate Division ruled on a matter where the father wanted to move some distance from the mother. B.G. v. E.G.is an unpublished decision in which the lower court ordered that the parents “not to move more than [fifteen] miles from each other going forward in order to further parenting time between each parent and all of the children.”
The summary of the case includes an observation that although the parents were dysfunctional, they had a good relationship with their children. That said, the Appellate Division disagreed that setting geographic limitations would be in the best interests of the child.
Unilateral In-State Relocation of Children
A couple of weeks ago, the New Jersey Appellate Division ruled in another case involving intra-state relocation of the parties’ children. In A.J. v. R.J., the trial court sanctioned the mother by transferring custody to the father for failure to comply with a prior order related to relocating the children.
The court used initials to identify A.J. as the mother of the children, and R.J., as the father. Five years after they married in 2008, the couple divorced in 2013. Their two children are now ten and eight years of age.
At the time of their divorce, the couple entered into a marital separation agreement (MSA), which the court incorporated into their final judgment. The MSA named the mother as the parent of primary residence. Meanwhile, it granted R.J. parenting time every other every other weekend from Friday to Saturday and one midweek overnight. Additionally, the parents agreed to share holidays and had designated vacation weeks during the summer.
Subsequent to the divorce, A.J. remarried and had a third child. She, her new husband and children lived in a two-bedroom apartment in Elizabeth until March of 2018. Subsequently, they moved to Mount Holly, a distance of 62.3 miles from the defendant’s residence. A.J. made the decision unilaterally – without input from the children’s father.
A.J. claimed the reason she moved so far away was because she had family in Mount Holly. When her landlord in Elizabeth increased the rent, she first tried to find another place to live within the city. Additionally, her search for a new residence extended to Somerset and Florence.
Father Learns of Relocation
According to R.J., he first learned that A.J. was considering relocation via a text message exchange in July of 2017. At that time, R.J. asked his former wife to remain more local as the distance would be unfair to both he and their children.
It wasn’t until after the actual move that R.J. learned of the relocation. He filed papers with the court, which also included a request to modify custody. On May 14, 2019, the court awarded him temporary parenting time three weekends each month, as well as mediation.
Additionally, the court scheduled a plenary hearing to determine whether A.J. would be permitted to remain in Mount Holly. Lastly, the children would continue to go to school in Elizabeth. On first glance, the latter might seem difficult. However, A.J. teaches within the Elizabeth school system.
Mediation and Plenary Hearing
A.J. and R.J.’s attempts at resolving the issue through mediation did not work. After the plenary hearing, the judge executed an order, which included a written decision. Before the start of the 2018-2019, plaintiff was ordered to return with the children and establish a residence within 15 miles of Union.
Meanwhile, parties were to follow the temporary parenting time established by the May 2018 court order. Once A.J. returned to the area, the parenting time would revert to the one established by the MSA. In rendering its written decision, the court referred to factor elicited in another case.
More specifically, the judge wrote, “[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.”
More on the Order
The judge cited other aspects of the relocation that led the court to the conclusion that in was not in the best interests of the children to relocate because the move would be “deleterious to the relationship with [defendant.]” Despite the court order, A.J. did not return to live within closer proximity to R.J. Subsequently, the defendant filed an enforcement motion.
However, it didn’t stop there. R.J. also requested a transfer of residential custody and termination of his obligation to pay child support. A hearing was held on the issue on September 28, 2018.
At that time A.J.’s attorney brought up the mother’s lease obligations that would run until April 2019. She could not afford two homes. However, as far as the judge was concerned, A.J. created the situation with her “improper location.”
Notably, the judge did not notify either party that the custody arrangements would change if A.J. did not comply with the order to move within fifteen miles of Union. That said, the judge found it to “in the best interest of the children to be near their father and have visitation with their mother.”
On appeal, A.J. contended that the trial judge changed custody, without the following:
- Best interests hearing
- Warning that custody would be modified if mother failed to return
Additionally, the plaintiff claimed that the judge decided to rewrite the MSA to impose the geographic restrictions. This was not written in the original agreement.
In the end, the Appellate Division decided that the best interests of the children required more thoughtful investigation before the transfer of custody. The law regarding the rights of both parents is described in NJSA 9:2-4.
The case was remanded back to the trial court for a best interests hearing.
If you share custody or parenting time, you should speak with an experienced family law attorney before making plans to relocate. At the Law Offices of Sam Stoia, we can help. Give us a call to schedule a one hour complimentary appointment.