Appellate Division of New Jersey Reverses Trial Court’s Granting Relocation of Children to Georgia
Docket No. A-0415-23
Decided December 16, 2024
Submitted by New Jersey Child Custody Law Firm, Hark and Hark.
In a recent unpublished decision the Appellate Division of New Jersey reversed a trial court’s order allowing Defendant’s request to relocate to Georgia with the parties’ children.
In O.M.R. v. T.D.P., the case involves a series of court orders and hearings regarding the custody and relocation of the daughter from New Jersey to Georgia. Initially, a 2019 order denied the defendant’s request to relocate the daughter to Georgia, citing a failure to satisfy the legal standard set in Bisbing v. Bisbing. Despite this, the defendant later moved the daughter to Georgia without the plaintiff’s consent or a court order, prompting further legal action.
The appellate court reversed a trial court’s August 29, 2023, order that had allowed the defendant to relocate the daughter to Georgia. The appellate court found that the trial judge failed to make necessary findings of fact or conclusions of law regarding whether the relocation was in the child’s best interests, as required by New Jersey law. The trial judge did not adequately apply the best interests factors outlined in N.J.S.A. 9:2-4(c) or provide a clear rationale for the decision. The appellate court noted that the trial judge’s decision seemed to rely heavily on the child’s ambiguous preference, which was not clearly expressed during an interview.
The appellate court highlighted procedural issues, including the lack of a formal application for removal by the defendant and the absence of cross-examination opportunities for the plaintiff. The court emphasized that the burden of proof for demonstrating cause for removal lies with the parent seeking relocation. The appellate court remanded the case for a new hearing, instructing that a different judge should preside over the matter due to the original judge’s prior statements and limited findings, which suggested a commitment to the initial ruling. The court also directed that a clearly defined custody and parenting time schedule be established, as the current arrangement was not deemed in the best interests of the children.
Under N.J.S.A. 9:2-2, a parent who seeks to remove a child from this state when the other parent does not consent must demonstrate “cause” for the removal. The legislative intent of N.J.S.A. 9:2-2 was “‘to preserve the rights of the noncustodial parent and the child to maintain and develop their familial relationship.'” Bisbing v. Bisbing, 230 N.J. 309, 323 (2017) (quoting Holder v. Polanski, 111 N.J. 344, 350 (1988)).
In Bisbing, the Court interpreted “cause” under N.J.S.A. 9:2-2 as requiring the petitioning parent to satisfy the “best interests analysis . . . set forth in N.J.S.A. 9:2-4(c), supplemented by other factors as appropriate.” 230 N.J. at 338 (citing N.J.S.A. 9:2-4(c)). The Bisbing Court specifically overruled the two-part removal test in Baures v. Lewis, 167 N.J. 91 (2001), and replaced it with the best-interest standard embodied in N.J.S.A. 9:2-4. 230 N.J. at 312-13. Further, the Bisbing Court instructed that in making “the sensitive determination of cause[, a court] must weigh the custodial parent’s interest in freedom of movement as qualified by his or her custodial obligation, the State’s interest in protecting the best interests of the child, and the competing interests of the noncustodial parent.” Id. at 323 (internal quotation marks omitted) (quoting Holder, 111 N.J. at 350).
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