Looking to move from one part of New Jersey to another? What does your custody and parenting time agreement say about your ability to do so? Will that move adversely affect your co-parent’s ability to have parenting time with your child? These are all things to keep in mind in light of the recent published and precedential opinion from the Appellate Division in A.J. v. R.J.
Here, the parties had a parenting plan where the Mother was primary residential parent and Father exercised alternate weekend parenting time with their children from Friday to Saturday with one mid-week overnight. The Mother could no longer afford to remain in her rented apartment in Elizabeth, New Jersey and moved to Mount Holly, New Jersey where she had family available to her. She continued to commute to Elizabeth for work. She moved with the children in March of 2018, after informing the Father in one text message in July 2017 that she was contemplating the move. Her move relocated the parties’ children 62.3 miles from their Father. And so ensued the litigation on this issue.
On an emergent application made by the Father, the judge granted the Father temporary parenting time three weekends each month, scheduled mediation and a plenary hearing and ordered the children to continue attending school in Elizabeth. At the hearing, which was concluded before the beginning of the 2018-2019 school year, the judge ordered that the Mother and children were to return to the area generally surrounding Elizabeth, and provided a 15 mile radius for her to move.
As it goes, Mother did not return to that radius and on another emergent application by Father, he was granted an immediate modification of custody pursuant to Court Rules 1:10-3 and 5:3-7. The Judge found that the change was in the best interests of the children.
The Appellate Division in A.J. v. R.J. made clear that the Court is not required to find a less severe or invasive sanction before it is permitted to modify custody due to the non-compliance of one parent with a custody and parenting time order. However, what the rule does require is a separate hearing and finding which considers the children’s best interests and findings be made pursuant to N.J.S.A. 9:2-4 before the sanction is ordered. The Appellate Division specifically held as follows:
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 in 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 whether a court transfers custody as a sanction.
Additionally, because Court Rule 5:3-7 is “coercive in nature,” if the sanctioned party seeks termination due to later compliance with the court’s order, upon application, the trial court should consider same.
The Appellate Division also made clear that any and all future applications for intra-state relocations were to be decided pursuant to the Bisbing v. Bisbing standard of “best interests” and no longer the standard under Baures v. Lewis. The Appellate Division held:
…where a parent of primary residence seeks an intra-state relocation and the parent of alternate residence opposes it, the parent of alternate residence must convince the court to move constitutes a change in circumstance affecting the bests interests of the children. If a prima facie case is established, the trial court must assess custody and parenting time, by applying N.J.S.A. 9:2-4 factors to determine whether the best interests of the children requires a modification of one or both.
The court did not provide guidance on which party would be required to file such an application, whether it be the moving parent or the remaining parent, however, the court noted that the “parents ability to agree, communicate and cooperate in matters relating to the child” is a factor for consideration under N.J.S.A. 9:2-4.
In A.J. v. R.J., because the trial court did not do a “thoughtful investigation” of the best interests of the children, the Appellate Division ultimately sent back the case to the judge and required a hearing and necessary findings be made.
There are many take aways from this case:
- What does your agreement state about your ability to relocate intra-state with your children? Does your agreement have a radius of available towns/cities in which you are able to relocate?
- Have you communicated extensively or briefly with your co-parent about your or their need to move?
- What are the modifications required to accommodate such a move and will those allow you to have significant contact and meaningful parenting time with your children such that the move does not affect their best interests?
These above issues arise both pre-divorce and post-divorce. They also arise when parents have never been married but share a child or children together. In order to protect the best interests of your children, and ensure you have significant contact and meaningful parenting time with your children, contact the attorneys at Shane and White, LLC to discuss your rights and your options.