New Jersey Divorce and Family Lawyer Blog
Various blogs have been written by members of our firm about situations where a custodial parents 
wants to move with the parties’ children to a state other than New Jersey. Can a custodial parent live wherever he/she wants within the State of New Jersey? Can a non-custodial parent ask a New Jersey family court just to stop a custodial parent from moving with the children to another town or city within the State of New Jersey?
Certainly some parents have reached an agreement with one another that they will live within a certain proximity to one another where they feel that it is in their own best interest for their children to live in certain areas of New Jersey or for the parents to live within a certain proximity to one another in order for their custody and parenting time agreement to work out. New Jersey has a public policy of enforcing settlement agreements where they are fair and equitable.
What if parents do not have such an agreement? Can the non-custodial parent prevent the custodial parent from living anywhere within the state of New Jersey that the custodial parent wants to live? In 2003, the Appellate Division addressed this question in the case of Schulze v. Morris, 361 N.J. Super. 419 (2003). In this case, the parties had both been living in Middlesex County, New Jersey, but after the custodial parent was denied tenure at her teaching position, she found another teaching job in Sussex County and wanted to move with the parties’ child to Sussex County. The non-custodial parent filed an Order to Show Cause seeking to stop the custodial parent from moving with the parties’ child to Sussex County. The Appellate Division concluded that a custodial parent’s request to move to a different place within the State of New Jersey is not a “removal” action pursuant to N.J.S.A. 9:2-2 for which the custodial parent has to obtain the permission of the Court. However, the Appellate Division recognized that a custodial parent’s move with a child can have significant impact on the relationship between the child and the non-custodial parent and that there are occasions where an intrastate relocation can constitute a substantial change in circumstance warranting a modification of the custody and parenting time arrangement. When a noncustodial parent opposes an intrastate relocation of the child(ren) but the custodial parent on the basis that the move will be “deleterious to the relationship between the child and the non-residential custodial parent, or will be otherwise inimical to the child’s best interests”, then the Appellate Division in Schultze directed that the family court had to assess the factors in Baures v. Lewis, 167 N.J. 91 (2001), an interstate relocation case.
In the case of A.J. v. R.J., A-1168-18 (App. Div. Oct. 7, 2019), the Appellate Division recently revisited the Schulze decision given that Baures had been overruled by the Supreme Court of New Jersey in Bisbing v. Bisbing, 230 N.J. 39 (2017). Additionally, the Appellate Division addressed how to apply the sanctions involving a transfer of custody pursuant to Rule 1:10-3 and Rule 5:7-3 if the custodial parent does not comply with a family court’s order not to relocate with the children.
In A.J. v. R.J., the parties divorced in 2013 and by the time of the post-judgment dispute, their two children were 8 and 10 years old. Under the terms of their marital settlement agreement, the parties share joint legal custody. The Plaintiff had primary residential custody of the children, and the Defendant had parenting time with the children on alternate weekends, one night during the week in addition to shared holidays and one week of vacation in the summer. Post-judgment, the noncustodial parent lived in Union County and worked in New York City. The custodial parent remarried and had another child. She lived in Union County with her husband and children, and she had a tenured teaching job in Elizabeth.
In July, 2017 the custodial parent informed the non-custodial parent that she was considering a move and that she was looking for a residence locally but also as far away as Mount Laurel (Burlington County). The noncustodial parent told her that he felt that this move was unfair to the children and him and he asked the custodial parent to live locally. They had no further discussions about relocation until March, 2018. The custodial parent’s apartment rent increased and she relocated more than 62 miles away from Elizabeth to Mount Holly, New Jersey (Burlington County) where she had family. She informed the noncustodial parent of this move days later via text message.
The non-custodial parent filed an Order to Show Case to bar the relocation and change custody. The trial court gave the non-custodial parent additional weekend parenting time on a temporary basis, scheduled a plenary hearing as to whether to allow the custodial parent to remain with the children in Mount Holly, and ordered that the children would have to stay in school in Elizabeth. After the plenary hearing, the family court judge ordered that before the start of the 2018/19 school year, the custodial parent would have to move within 15 miles of Elizabeth, after which the parenting time arrangement per the marital settlement agreement would resume. The family court applied the Baures factors as directed by the Appellate Division in the Schulze case and found that although the custodial parent had not moved to Mount Holly in order to alienate the noncustodial parent from the children, she did move there in “wanton disregard” of the noncustodial parent’s rights. The court found that this intrastate relocation was not in the best interest of the children because it would cause the relationship between the children and the noncustodial parent to suffer.
The custodial parent did not comply with the order to return to the Union County area, leading the noncustodial parent to file an application for enforcement and transfer of custody. The custodial parent claimed that she was not able to comply with the order because she signed a lease on the Mount Holly residence and could not afford the rent in the area in the 15 mile radius of Elizabeth. The trial judge rejected that argument. Pursuant to Rule 1:10-3 and Rule 5:3-7, the trial court found that it could transfer primary residential custody to the noncustodial parent due to the custodial parents’ non-compliance with the court’s prior order to return to living in 15 mile radius of Elizabeth.
The trial court’s decision was reversed by the Appellate Division. The Appellate Division stated that pursuant to Rule 5:3-7(a)(6) the family court did have the authority to transfer custody of the children to the non-custodial parent as a sanction to the custodial parent for her failure to comply with the July, 2018 order. However, Rule 5:3-7(a) requires a best interest hearing and findings as to the statutory custody factors in N.J.S.A. 9:2-4 before the noncustodial parent can be sanctioned with a transfer of custody. Since Rule 1:10-3 is coercive, the custodial parent can request termination of that sanction when the custodial parent complies with the court’s order.
Additionally, the Appellate Division also found that the trial court used the incorrect standard by applying the factors in Baures, which had been overruled in 2017. Consequently, the Appellate Division held that “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 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.” That does not mean that the trial court judge on remand cannot still order the non-custodial parent to return with the children and live within a 15 miles radius of Elizabeth, but that the family court would have to make the appropriate findings under the correct standard.
Issues involving custody and parenting time after a divorce often continue to accrue and can be complex and fact sensitive. The lawyers at the offices of James P. Yudes, P.C. are here to assist you.