What Will “Move” the Family Judge?

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Matt Rooney

Matt Rooney

is a New Jersey attorney, former Superior Court law clerk, and noted commentator who focuses his practice on family law, municipal court defense, and personal injury matters. He was recognized by SJ Magazine as a 2018 “Top Divorce & Family Attorney."

Rationale Behind Unreported New Family Part Custody Decision Could Help New Jersey Parents Seeking to Relocate Out-of-State

Moving VanLast April, we extensively discussed the basic New Jersey legal standards involved when one custodial parent tries to relocate the child(ren) outside of New Jersey and, of course, the other parent opposes the move.

Click here to review our post if you missed it. In short, if the move is permanent (not just for vacation or the summer), the Court has to hold a fact-finding “plenary hearing” in order to determine whether the parents genuinely “share” custody.

When one parent is clearly the parent of primary residence (based on a somewhat subjective analysis of parental involvement, division of labor and overnights), then the Court will likely permit the move so long as it is (1) proposed in “good faith,” meaning that the move isn’t a masked attempt to thwart the non-custodial parent’s custody rights, and when (2) the move is not detrimental to the child’s interests (See Baures v. Lewis).

The analysis is significantly more complicated for the Judge to sort out if the parents DO truly share custody. The moving-parent’s application would be considered a request to change custody under these facts rather than simply a relocation to a different state. That’s obviously a much bigger deal! And the Court consequently take the decision much less lightly. The moving party would therefore need to meet a much higher factual burden by demonstrating that the proposed relocation is in the child’s best interest. (See O’Connor v. O’Connor).

For future family court litigants, a new unreported (and therefore non-binding) New Jersey Appellate Court decision may nevertheless shed new light on the parties’ respective burdens when relocation is on the line.

The parent-parties in Loos v. Brown were fighting over the mother’s attempt to move the parties’ child to North Dakota from New Jersey. Initially, the trial court denied the mother’s application without a plenary hearing (or “mini” fact-finding trial), stating only that she “should not have right to leave the State at this time.” However on appeal, a two-judge panel reversed and remanded the trial’s court decision, setting the stage for a factual hearing that the Court felt should have occurred the first time around.

Here, the Court noted that the parties had previously consented to the mother serving as custodial parent of primary residence which triggers the lower-scrutiny Baures test discussed above. The Court further noted that “her desire to move to North Dakota was to be nearer her family with the likely potential for improved employment without the burden of shelter expenses currently incurred in New Jersey.” Interesting, the mother’s lack of employment in North Dakota at the time of trial couldn’t be held against her because she rightly couldn’t commit to an employer without first knowing whether she could move. The only genuine factual dispute between the parties was the actual impact on the father’s parenting time, a factor which the Appellate Court felt the trial-level court had assigned too much weight.

Consequently, the Appellate Judges felt that the mother had “sustained her burden of presenting a prima facie case,” shifting the burden to the father to “produce evidence opposing the move as either not in good faith or inimical to the child’s interest.” A plenary hearing would be necessary to sort it out.

The outcome of this fascinating custody case illustrates exactly how New Jersey custody disputes are highly-factual affairs. A successful application to (1) modify custody, (2) justify an out-of-state relocation or (3) defeat either (if you’re the non-consenting spouse) requires a substantial amount of groundwork before the first day of your plenary hearing. Retaining custody experts, deposing witnesses, determining the proper timeline and dissecting the relevant relocation information (including school quality reports and parenting time plans) require a good deal of deliberation and strategic cooperation between attorney and client.

At DeMichele & DeMichele, our attorneys know the applicable legal standards, stay on top of developments in the law and have many years of combined experience litigating exactly this kind of case. We’ll walk you through the steps, answer your questions, initiate the proper discovery and help you construct the best possible argument for the outcome that you believe is in your child’s best interest.

Don’t delay. If you or a loved one has questions regarding child custody, parenting time, or an out-of-state move, contact the family law lawyers at DeMichele & DeMichele. A confidential consultation is only a quick email or phone call away: (856) 546-1350.

The following two tabs change content below.
Matt Rooney

Matt Rooney

is a New Jersey attorney, former Superior Court law clerk, and noted commentator who focuses his practice on family law, municipal court defense, and personal injury matters. He was recognized by SJ Magazine as a 2018 “Top Divorce & Family Attorney."
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