Where, post-divorce, mother, with two children, unilaterally relocates 62 miles from father, then fails to comply with court order requiring her to return, court cannot change custody to father without a hearing to determine best interests of children. A.J. v. R.J., __ N.J. Super.__, 2019 WL 4924420 (App. Div. 2019)

At the time of their divorce in 2013, following a five-year marriage which produced two children, the parties agreed that A.J., the wife, would be the parent of primary residence, and R.J., the husband, would be granted parenting time on alternate weekends (Friday to Saturday) and one midweek overnight. Five years after the divorce, and after her re-marriage, wife, in spite of husband's announced objection, unilaterally moved 62 miles away from Elizabeth to Mount Holly, New Jersey. In May 2018, the trail judge granted husband's order to show cause providing for temporary parenting time three weekends per month and requiring the children to continuing in the Elizabeth school system. Following a plenary hearing, in July 2018, the court ordered wife to return with the children and to reside within 15 miles of husband.

When wife did not return, on Sept. 28, 2018, the court found both wife and husband were good, fit parents who had bonded well with the children, who at ages 8 and 10, continued to need both parents in their lives. However, the court opined that the "surreptitious nature of the move" was "done in wanton disregard of (husband's) rights with the result being that his relationship with (the children) will clearly suffer." Therefore, without holding a plenary hearing, the trial court transferred custody from the wife to the husband.

On appeal, the court reversed and remanded the matter in order for the trial court to hold a plenary hearing to determine whether the proposed relocation constitutes a change of circumstances and, applying the factors of N.J.S.A. 9:2-4, whether the relocation is in the best interests of the children.

N.J.S.A. 9:2-4, which recognizes that minor children should have "continuing contact with both parents (and that) … the rights of both parents shall be equal," requires a court, in making custody decisions, to consider, among other factors:

1. The parents' ability to communicate and cooperate;
2. The parents' ability to accept custody;
3. The relationship of the child with its parents and siblings;
4. Any history of any domestic violence and the safety of the child and parents;
5. The child's preference, if of sufficient age;
6. The child's needs;
7. The stability of the home;
8. The child's continued education;
9. The parents' fitness;
10. The proximity of each parent's home;
11. The time spent by each parent with the child before and after the separation;
12. The parents' employment responsibilities; and
13. The age and number of children.

Although, on appeal, the court acknowledged that the trial court had the authority, pursuant to R.5:3-7(a)(6), to transfer custody, as a sanction for the wife's failure to comply with the court's order to return the children, it emphasized that the rule "requires a separate adjudication which considers the children's best interests … (and a prior custody decision or agreement) should be modified only where there is a showing of changed circumstances which would affect the welfare of the children." The court pointed out that R.1:10-3 is intended to be employed "not for the purpose of punishment but as a coercive measure to facilitate the enforcement of the court order."

It would appear that, in reversing, the Appellate Division applied the principle that two wrongs don't make a right. That is, because of wife's surreptitious unilateral relocation and failure to comply with the court order to return with the children (wrong #1), the trial court was punishing the wife rather than considering the best interests of the children (wrong #2).

This decision is significant because the court pointed out that the trial court applied the wrong relocation standard and clarified, for the bench and bar, why, in relocation cases, the Baures v. Lewis, 167 N.J. 91 (2001), standard of allowing a relocation that is not inimical to the interests of the child, has been replaced by the Bisbing v. Bisbing, 230 N.J. 309 (2017), standard of the best interests of the child based upon the factors set forth in N.J.S.A. 9:2-4. The court explained that the Baures standard (based upon an inter-state relocation) was overturned because "the progression in the law toward recognition of a parent of primary residence's presumptive right to relocate with children, anticipated by this Court in Baures has not materialized." Bisbing, at 330.

This case involved a 62-mile move within the state of New Jersey. Query: Should there be a different standard for inter-state verses intra-state relocations? Two scenarios will make the answer to this question obvious. Assume mom, by agreement, is designated the parent of primary residence, and dad is granted parenting time alternate weekends and every Wednesday evening.

Scenario #1: At the time of the divorce mom lives in Lawrenceville, NJ, and dad lives approximately 7 miles (13 minutes) away in Trenton. Mom relocates across the Delaware River to Morrisville, Pa., 2 miles (8 minutes) from Trenton.

Scenario #2: At the time of the divorce mom lives in Sparta, NJ, and dad lives 9 miles (15 minutes) away in Hopatcong, NJ. Mom relocates to Wildwood, NJ, 178 miles (3 hours) from Hopatcong.

Because scenario #1 involves an inter-state relocation, prior to A.J. v. R.J., Bisbing would require a relocation hearing to determine whether this 2-mile relocation is in the best interests of the child. However, because scenario #2 is only an intra-state relocation, prior to A.J. v. R.J., Schulze v. Schulze, 361 N.J. Super. 419 (App. Div. 2003), an intra-state relocation, would not consider this a statutory removal requiring court approval.

Is there any reason why, simply because of a state boundary line, there should be a different standard governing the relocation issue, other than what is in the best interests of the children?

A.J. v. R.J. seems to answer this question by clarifying this seemingly incongruous legal possibility. It does so by replacing the inter-state / intra-state rule with a rule that abolishes the state borderline distinction in favor of a rule that a best interests hearing, and a court determination based upon the factors set forth in N.J.S.A. 9:2-4, is required whenever a proposed relocation constitutes a substantial change of circumstances, regardless of whether the proposed relocation is inter-state or intra-state.

Because both attorneys for A.J. and R.J. have indicated, to this author, that there is little chance that this matter can be amicably resolved, upon remand, there will be another trial court determination. For that reason, perhaps the time is ripe for the relocation rule to include a suggested reasonable distance guideline (such as 15 miles) and/or a reasonable drive-time guideline (such as 20 minutes).

This case demonstrates how our law is gradually and properly being modified to comply with the changing mores of a mobile society. We no longer live in a society where mothers are expected to stay home and cook, clean, sew, and take care of the children while the father goes out to work every day to bring home the bacon. Instead, more commonly, both parents are working within or outside New Jersey, either a relative or a nanny performs the chores previously assigned to mom, or the father is a stay-at-home dad.

In summary, it would appear, to this author, that women are, gradually and rightly, achieving their goal of becoming equal in the household and the workplace. In view of these societal changes, it is not surprising that the law is also properly evolving to put both parents "on equal footing." Emma v. Evans, 215 N.J. 197, 221 (2013).

Louis Locascio, a Monmouth County Superior Court judge from 1992 until 2009, is now of counsel with the Red Bank office of Gold, Albanese, Barletti & Locascio, where he heads up their civil and family mediation/arbitration department. He is a certified civil and criminal trial lawyer.