In enacting New Jersey statute, N.J.S.A. 9:2-2, the Legislature established a mechanism and procedure for a divorced or unmarried parent when seeking to move with one’s children outside the state of New Jersey. The statute provides:
“When the Superior Court has jurisdiction over the custody and maintenance of the minor children of parents divorced, separated or living separate, and such children are natives of this State, or have resided five years within its limits, they shall not be removed out of its jurisdiction against their own consent, if of suitable age to signify the same, nor while under that age without the consent of both parents, unless the court, upon cause shown, shall otherwise order. The court, upon application of any person in behalf of such minors, may require such security and issue such writs and processes as shall be deemed proper to effect the purposes of this section.”
The Courts in New Jersey have on several occasions interpreted this statute to address the standard for the family courts to apply when one parent wants to move out of New Jersey with the parties’ children, and the other parent objects to the children making such a move. We addressed this standard in a previous blog with regard to parents having a shared 50/50 custodial arrangement based on the decision of the Appellate Division in Bisbing v. Bisbing, 445 N.J. Super. 207 (App.Div. 207), affirmed in part, modified, 230 N.J. 309 (2017). In another blog, we addressed the standard for relocation based on the factors outlined in Baures v. Lewis, 167 N.J. 91 (2001). In those cases, before the children were removed from New Jersey, an application was made by the parent seeking to move. Does that have to be the procedure? Can the parent make that application after the move? Is it the obligation of the objecting parent to make an application objecting to the children’s removal from New Jersey?
In Dever v. Howell, 456 N.J. Super. 300 (App. Div. 2018), the parties were never married but had two children. In 2011 they reached an agreement for joint physical custody and shared parenting time arrangements, but two years later the Plaintiff became the primary custodial parent. In 2015, the parties entered into a consent order which would have allowed the Plaintiff to relocate with the parties’ children to Florida. The Plaintiff had married by this point, and his wife needed to move to Florida to care for her mother. Plaintiff wanted to move with the parties’ children to Florida with his wife and her children. The Plaintiff, however, never moved to Florida with the children. He and his wife divorced, she moved to Florida alone.
Close to the end of 2015, the Defendant filed a motion in the family court seeking additional parenting time with the children, who were still living in New Jersey. While the application was pending, the Plaintiff informed the Defendant that he was moving with their children to South Carolina. Although the Defendant told the Plaintiff that she did not agree, the Plaintiff moved there with the children anyway. He did not make an application in advance of the move to request permission of the Court to move with the children to South Carolina, relying instead on the earlier agreement between the parties that allowed him and the children to move to Florida.
In April, 2016 the family court heard oral argument on the return date as to the Defendant’s pending motion seeking additional overnight parenting time with the children. When the motion judge heard that the children had moved, she noted that the procedure for relocation may have been “procedurally defective”, so she only temporarily allowed the children to remain in South Carolina “until further order of the court”. She did not perform any best interest evaluation, nor did she perform any evaluation of whether there had been “cause” to move to South Carolina, nor was she asked to perform either evaluation.
In the Fall of 2016, the Defendant filed an emergent application asking the Court to direct that the children be returned to New Jersey and that she be awarded sole custody. She did not know where in South Carolina the children were living or have basic information about them. The judge ascertained the address of the children in South Carolina, ordered parenting time for the Defendant, and in 2017 held a hearing. The trial court found that the Plaintiff had violated N.J.S.A. 9:2-2 by relocating with the children to South Carolina without the Defendant’s permission and without the permission of the court, that the May, 2015 consent order permitted relocation only to Florida, and directed that the children be returned to New Jersey. The Court did not modify the custody or parenting time arrangement.
The Plaintiff filed a motion for reconsideration, this time asking for the first time that the court perform an evaluation of the best interest of the children. The Plaintiff by this point had never asked for an analysis under either Bisbing or under Baures. The Plaintiff did not ask the court to determine if there was “cause” for the children to be relocated to South Carolina. Rather, he claimed that it was the Defendant who bore the burden of proof — to establish to the Court that it was in the best interest of the children for them to be returned to New Jersey. The trial court denied that request.
The Appellate Division agreed with the trial court and affirmed. The Appellate Division cited to the plain language of N.J.S.A. 9:2-2, which states that children “shall not be removed out of [this] jurisdiction . . . without the consent of both parents, unless the court, upon cause shown, shall otherwise order.” Consequently, a parent cannot simply relocate with the parties’ children to a state outside of New Jersey unless the other parent consents or unless a court order is first obtained. The Plaintiff did not follow the procedure established in the statute.
The Appellate Division rejected the Plaintiff’s argument that he did not have to seek permission to relocate with the children to South Carolina because the Defendant had previously agreed to allow him to relocate with the children to Florida. That previous agreement said nothing about the children moving to South Carolina. Also, before moving to South Carolina, the Plaintiff knew that the Defendant did not consent because she refused to sign a new consent order he presented to her that allowed the children to move to South Carolina with him. The Appellate Division rejected the argument that the Defendant had the burden of proof to show that it was in the best interest of the children to be returned to New Jersey. Such a procedure ignores the requirement in N.J.S.A. 9:2-2 that the parent seeking to relocate with the children establish “cause” to the Court and would encourage parents to move in violation of N.J.S.A. 9:2-2.
Do not make the mistakes made by the parents in this case. If you desire to move with your child outside the State of New Jersey, or if you are objecting your child’s other parent relocating with your child outside the State of New Jersey, it is important to consult counsel to ensure that the proper procedures are met so that the serious consequences to you or your children do not result from violating N.J.S.A. 9:2-2 and the case law interpreting same. The office of James P. Yudes, P.C. has lawyers who can assist you.