Child custody/photo courtesy of Bigstock

The issue of where a child primarily lives is crucial, and a trial court erred in stripping custody from the parent of primary residence following a move to a different part of the state without holding a hearing, an appellate court has ruled.

The Appellate Division reversed and remanded a decision in which the plaintiff, referred to only as A.J. in the complaint, appealed a Sept. 28, 2018, order that transferred custody of her young children to her former husband after she failed to comply with a prior order related to her moving from Elizabeth to Mount Holly with the children.

"We hold in cases where a court exercises its authority pursuant to Rules 1:10-3 and 5:3-7(a)(6), it must make findings under N.J.S.A. 9:2-4 that the sanction imposed is in the best interests of the children," wrote Appellate Division Judge Hany Mawla, who delivered the published opinion Monday.

"We further hold the factors in Baures v. Lewis, 167 N.J. 91 (2001), no longer apply when a court is addressing an intra-state relocation, and instead, pursuant to Bisbing v. Bisbing, 230 N.J. 309 (2017), the court must apply N.J.S.A. 9:2-4," Mawla added. "Because the trial judge applied the wrong law related to the intra-state relocation and did not apply N.J.S.A. 9:2-4 when he sanctioned plaintiff, we reverse and remand for further proceedings consistent with this opinion."

Judges Ellen Koblitz and Mary Gibbons Whipple also heard the case on appeal from Union County Superior Court.

Elizabeth Calandrillo of Ross & Calandrillo in Mountainside represented plaintiff A.J. in the case.

"We are pleased that we were able to contribute to the changing landscape of family law and help to clarify outstanding issues for relocation cases, whether interstate or intra-state. Knowing the factors that need to be addressed assists attorneys and litigants alike in presenting the facts to the tribunal that has the difficult job of making these decisions when parties cannot agree," she said in an email regarding the ruling. "I am especially glad that our client will now have the opportunity to revisit an erroneous order and seek a determination of what is in the best interests of their children."

Union attorney Andrew Wolfenson represented defendant R.J. and also viewed the court's opinion as a win, he said.

"I see this as a large victory for noncustodial parents because the court has finally recognized that custodial parents should not be permitted to move wherever they want within the state and without regard for the interests of the other parent," Wolfenson said. "The court's recognition for the need to use the best interests standard affords noncustodial parents much greater rights with respect to maintaining proper contact and parenting time with their children."

According to the decision, plaintiff A.J. and defendant R.J. married in 2008 and divorced in 2013. They bore two children together, presently 10 and 8 years old, before divorcing.

A marital settlement agreement (MSA) designated A.J. as the parent of primary residence, and granted R.J. parenting time every other weekend and one midweek overnight, and the parties agreed to share the holidays, and each had one week of summer vacation with the children, the decision said.

After the divorce, A.J., a tenured school teacher, remarried and had a third child. She, her new husband, and the three children lived in a two-bedroom apartment in Elizabeth, the court noted.

The dispute began in March 2018, when A.J. moved with her three children from Elizabeth to Mount Holly, 62.3 miles away from R.J., who lived in Union and worked in New York City. He claimed the move was unfair to him and the children.

When A.J. said she couldn't afford to maintain two residences and move back, R.J. filed an order to show cause to bar the relocation and modify custody. He sought to compel A.J. and the children to return, a transfer of residential custody, and termination of his child support obligation.

A May 14, 2018, the trial court judge, Union County Superior Court Judge Thomas Walsh, granted R.J. temporary parenting time three weekends each month, ordered mediation, and scheduled a plenary hearing to determine whether A.J. would be permitted to remain in Mount Holly. The judge also ordered the children to continue attending school in Elizabeth, according to the decision.

That September, Walsh found R.J. met his burden and granted his request for transfer of custody, stating, "the issue is the best interest of the children," and added that an order of the court had been violated.

On appeal, A.J. claimed Walsh changed custody without holding a best interests hearing and without warning her that custody would modify if she did not return to Elizabeth. She also argued that the judge acted arbitrarily and capriciously and applied the wrong standard.

In its reversal Monday, the panel said Walsh mistakenly relied on the Appellate Division's 2003 decision in Schulze v. Morris, which applied the Baures factors to determine whether a parent could relocate intrastate.

With the state Supreme Court deeming such factors no longer applicable to interstate removals of children, they should not apply to intrastate relocations either, the panel ruled.

Mawla noted how "the relief granted under Rule 5:3-7(a) by the trial judge is coercive in nature and that the sanctioned parent may seek termination of the sanction when the parent complies with the court's order."

"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," Mawla wrote, citing Pascale v. Pascale from 1995.

"Here, the trial judge did not consider the N.J.S.A. 9:2-4 best-interest factors before transferring custody to defendant," the court ruled. Mawla said the plaintiff served as the parent of primary residence when the couple divorced and she fulfilled that role for five years without incident.

"In this context, the best interests of the children required more thoughtful investigation before the judge ordered a custody transfer," added Mawla. "For these reasons, we reverse the September order and remand the matter to the trial judge to hold a hearing and make the necessary best-interest findings."

But Mawla declined to remand the matter to a different judge because he didn't share the view that Walsh acted arbitrarily and capriciously despite misapplying the law.