NJ Court Denies Child Relocation
Docket No. A-0310-22
Decided February 15, 2024
Submitted by New Jersey Divorce Lawyer, Jeffrey Hark.
In a recent unpublished decision the Appellate Division of New Jersey affirmed a trial court’s order denying Plaintiff’s request to relocate to Portugal with the parties’ child.
In C.D.V.D., the parties married in 2015. Plaintiff was born in Portugal. Plaintiff maintains dual citizenship in Portugal and the United States. Defendant was born in Pennsylvania and moved to New Jersey when he was eight years old. He does not have dual citizenship.
In 2010, the parties met in London, where they were both living and working at the time. On May 25, 2015, the parties entered into a pre-nuptial agreement and were married in a civil ceremony in Lisbon, Portugal three days later. Following the marriage, the parties moved to New Jersey and resided with defendant’s parents while he was seeking employment. In January 2016, the parties moved to Philadelphia, Pennsylvania, where they resided until early 2018. They moved to Mount Laurel six months later after their son was born. H.J. is a dual citizen of the United States and Portugal and has lived his entire life in New Jersey.
After moving to the United States, plaintiff was unemployed for a year but claims she ultimately secured employment that paid less money than she earned in London. The parties agreed plaintiff would resign from her position after she became pregnant with H.J. After their son was born, defendant worked from home every day, and plaintiff cared for their infant. In June 2018, H.J. traveled to Portugal with the parties and stayed with his maternal grandparents for several weeks.
On May 12, 2020, plaintiff filed a complaint for divorce on the ground of irreconcilable differences. On October 2, 2020, plaintiff contended defendant was using drugs and that drug residue was left on one of H.J.’s playroom items. A week later, plaintiff filed an order to show cause (OTSC) seeking to compel defendant to submit to a hair follicle drug screen, require defendant to have supervised parenting time with H.J., and award her sole custody if defendant’s drug screen was positive. The OTSC was denied without prejudice as non-emergent and not meeting the standard for preliminary injunctive relief.
On January 19, 2022, the parties entered into a marital settlement agreement (MSA), which resolved the majority of their equitable distribution and financial issues. On February 3, 2022, they entered into a custody and temporary parenting time agreement, which provided they “shall enjoy shared legal custody of the minor child born of the marriage” and “[t]here shall be no residential custody determination at this juncture, other than to memorialize that the parties continue to reside in the same home together with [H.J.] and neither has been designated as [H.J.’s] primary custodial parent. This determination is pending the [c]ourt’s decision.”
The Judge conducted a seven day trial regarding Plaintiff’s request to relocate to Portugal. Seven lay witnesses and two expert witnesses testified. The judge rendered a thirty-three-page written opinion, which was incorporated into the FJOD, denying plaintiff’s request to relocate to Portugal with H.J. The judge emphasized plaintiff’s proposed relocation would “result in some positive developments for [H.J.], [but] that any such benefits do not come close to outweighing the substantial and irreparable harm that would result tohis relationship with [defendant] as a consequence of his relocating to a country over 3,000 miles away.” The judge identified steps that could be taken to expose H.J. to a Portuguese community in the United States and stated, “[t]he ability to be immersed in Portuguese language and culture does not take precedence over [H.J.’s] relationship with [defendant,] . . . .”
The Plaintiff appealed the decision to deny relocation, among other things. The Appellate Division affirmed, finding the
Here, it is readily apparent the trial judge considered the principles enunciated in Bisbing and was cognizant of his charge to review the fourteen statutory factors under N.J.S.A. 9:2-4(c) when assessing plaintiff’s application. The judge highlighted that both experts’ hypothetical ideal scenario—for both parties to be actively involved with H.J. on a daily basis—was impossible because plaintiff intended to move to Portugal with or without H.J., and defendant was unwilling to relocate to Portugal. The judge noted defendant did not have a visa or dual citizenship in Portugal, and his job and work travel were based in the United States.
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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