BEST INTERESTS OF THE CHILD
PREVAILS IN RELOCATION
CASES
Jonathan D. Gordon, Ph.D., J.D.
© Jonathan D. Gordon, Esq. 2017
Interestingly, when a
divorced parent wanted to relocate outside of New Jersey (referred to as “removal”
in Court), and the other parent did not consent, the previous standards used to
favor the parent seeking to move. Without going into great detail about the factors
that a Court would use to determine if the removal of the child would be allowed,
the NJ Supreme Court just overturned the previous standard in favor of an
analysis of the best interests of the child.
Previously, if a custodial parent wanted to move, that parent would have
to show “cause” for the proposed move by showing “a real advantage to that parent” by moving as well as showing that
the sought-after move would not be “inimical to the best interests of the child”.
(Cooper v. Cooper, 99 N.J. 42 (1984). In the subsequent Holder v.
Polanski, 111 N.J. 344 (1988) case, the parent requesting the removal who had
primary residential custody of the child, simply needed to show “a good faith reason” and that the move
would not be “inimical” to the best interests of the child. Subsequently with parents who shared custody,
that application for removal would be treated as a matter of changed
circumstances with a request for a custody change, based on a best interests
analysis. (Baures v. Lewis, 167 N.J. 91 (2001)). All that was needed
under Baures for a successful application, was for the parent to have primary
residential custody, show a good faith reason for the move, present a parenting
plan for the child to continue to see the noncustodial parent, and show that
the move would not be inimical to the child’s best interests. There, the belief
was that a happy parent would benefit the child as well. The N.J. Supreme Court just reversed itself
with the new case, Bisbing v. Bisbing which was decided on August 8,
2017 (A-2 077533).
Under previous NJ
Law, it used to matter who was designated Primary Parent of Residence (PPR) because
the Court would be inclined to allow the move if requested by the PPR, if a
showing of good faith was made and the move was not “inimical” to the best
interest of the child (given an adequate parenting plan, usually involving a
few weeks in the Summer plus holidays, etc.).
Now under the new decision, it does not seem to matter who is
residential custodial parent (PPR) or who is the Parent of Alternate Residence
(PAR) as long as the PAR has some reasonable involvement in the child’s life
and there is joint legal custody. That includes the usual PAR schedule of
alternating weekends and a mid-week dinner time and alternating holidays. It does seem to matter, however, if one
parent has sole legal custody and a court will have to analyze the
circumstances underlying that arrangement and see what is in the child’s best
interests. For example, it is possible (although much less frequently found)
that a parent having no legal custody at all, still has parenting time, is very
involved in the child’s life, etc. Then the court would have make an individual
determination in that rare and unlikely fact pattern.
Now that the Supreme Court of New Jersey changed course, there are
many new factors to consider. What is
“best interests of the child” and how is it measured? Is it quantifiable and scientifically derived
from some accepted methodology? Actually, “best interests” is a court
determination. Otherwise it may be an opinion of a forensic evaluator which can
be disputed by the opinion of another forensic evaluator. Ultimately the Judge must decide if the move
is in the child’s best interests or not. The benefit to the parent seeking to
move is no longer a factor. New Jersey
Statute (N.J.S.A. 9:2-4) lists a number of factors that a judge must consider
in determining best interests and custody.
These include, but are not limited to: The parents’ ability to agree,
communicate and cooperate, any history of withholding or obstructing parenting
time from the other (not due to abuse), safety of the child, the child’s
preferences “when of sufficient age and capacity to reason so as to form an
intelligent decision”, the degree of cooperation in co-parenting, history of
domestic violence, the distance the parents live from each other now, the
number and age of siblings, the interaction and relationship of the child with
the parents and siblings, stability of the home environment, quality of
parenting time spent with the child after separation, parent’s employment
responsibilities, and any other factor deemed appropriate by the Judge. No longer is equal shared parenting time
required to have a quality relationship between parent and child—even for the
parent of alternate residence.
It is hard to say how this will change current and future court
applications for relocation by a parent who wants to move with the child. Some judges may insist upon a forensic best
interests evaluation:
To conduct a best
interests analysis, a forensic evaluator (could be for example, a Psychologist,
Social Worker or Psychiatrist) would need to evaluate the child(ren) in
question, both parents, relevant extended family members (e.g. grandparents,
siblings, etc.), and collateral contacts.
What are collateral contacts (also known as collaterals)? They are usually people who may be caregivers
(e.g. babysitters, physicians, dentists), or teachers and school personnel,
coaches, dance/gymnastics instructors, etc. Usually each parent will submit
their own list of whom they think will be important for the evaluator to
interview. These interviews may be in person or on the phone. In some cases, the evaluator may do a
classroom observation or a home inspection. At times, when one parent makes an
allegation about the other, the evaluator may go back to the other parent and
discuss it to hear their side of the story. The gathering of all of the
information should be thorough, fair and balanced for objectivity. Usually,
there are two sides of the story.
Sometimes, however, there is an imbalance that is created by information
provided by a parent or information derived from the child(ren) or others. A best interests evaluation can be via a
court-appointed expert, a joint expert (agreed-upon by both parties), or two
privately-retained experts, or a combination of the above.
Things to be aware
of: For a parent seeking relocation with
a child, and in anticipation of the required court process, the following
guidelines should be followed:
Do not lie,
embellish, make up fictional allegations, purposely omit important facts. It is better to focus on your relationship
with the child, your concerns for your child’s health, education and general
welfare, the bond you have with the child, any special circumstances that may
steer the court in a certain direction. Regardless
of whether you are the parent seeking to relocate, or the parent who objects to
the relocation, it is not helpful to your case to demonize the other parent. Unless
there is a documented history of domestic violence, child abuse, or substance
abuse, or some factual history that is noteworthy for its importance and relevance
to the “best interest of the child”, it is probably not going to help you to sling
mud and insults at the other parent. It may have the opposite effect on the
perceptions of the evaluator, especially when your child actually has a
relationship with that parent.
I have written
previously in this Blog that angry emotions stemming from feelings of abandonment
and rejection (among other issues), often fuel Family Court litigation. It also
sometimes fuels vengeful feelings against the other parent. Making up fictional
allegations, minimizing (to the evaluator) the other parent’s involvement in
the child’s life, exaggerating innocuous incidents (as if they really mean
something significant against the other parent), and generally letting your
anger spill over into the interviews—will all work against you. It will make
you look like a malicious, vindictive person who is not operating in good
faith, but who just wants to destroy the other parent or to marginalize their
involvement in the child’s life. In other words, you can destroy your own
credibility with the evaluator (and with the Judge) by not being completely
honest and forthright, and by being unfair to the child and to the child’s
other parent.
Let’s say that you really want to move out of the State and maybe
you have a great reason to do so (employment opportunity, marriage, etc.), that
is formulated in good faith, and is not stemming from your hatred of the other
parent. Under the new Bisbing
ruling, that might not be good enough.
Even being PPR and having spent more time than the other parent with
this child may not be good enough. Under
N.J.S.A. 9:2-2, if a parent wants to relocate with the child against the
wishes of the other parent, that child may not be removed from the State “unless
the court upon cause shown, shall
otherwise order”. (Emphasis added). “Cause”,
as now defined by Bisbing is determined by a best interests analysis
with the court considering all of the relevant factors enumerated in N.J.S.A.
9:2-4(c). See above for examples.
It is fairly clear that in most cases, a parent seeking relocation
against the wishes of the other parent will have to go to trial after this
evaluation (or evaluations) are completed.
The expert(s) will testify on the contents of their findings, will be
cross-examined and there will be testimony from the parents, relevant
collateral contacts, other witnesses,
and finally the Court will make its determination. For couples going through divorce, and who
anticipate that they may make a relocation request in the future, they may now
be motivated to attempt to get sole (legal) custody of their child(ren) to make
it easier for themselves later (because it is easier to get court approval to
move if you have sole custody). Unfortunately, that will result in many more
divorce trials if parents battle for sole legal custody then, rather than to have a legal disadvantage (if they are planning to relocate) later on. But, the presumption in New Jersey, as stated
by the Legislature in N.J.S.A. 9:2-4, is that it is in the public policy
of this state for parents to equally share their obligations, rights and custody
of their children unless the court in custody proceedings makes another
determination with the best interests of their child as the primary consideration.
The bottom line message seems to be that children need both parents, even if the
parents did not fare very well as spouses or partners with each other. If you have to go through an evaluation, try not to sling too much mud, because mud tends to get you dirty as well.
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Good luck, and please post a comment about your experiences.
Copyright © Jonathan D. Gordon, Ph.D., Esq., 2017
Jonathan D. Gordon, Ph.D., J.D., is a Family Law Attorney in NJ and in NY, representing Family Law clients in Superior Court of NJ . He is also a Licensed Psychologist (NJ #1358, NY #5614, OH #7540) who has performed forensic child custody evaluations and who has been appointed Guardian ad litem and Parent Coordinator by the NJ Superior Court, Family Division.
Jonathan D. Gordon, Ph.D., J.D., is a Family Law Attorney in NJ and in NY, representing Family Law clients in Superior Court of NJ . He is also a Licensed Psychologist (NJ #1358, NY #5614, OH #7540) who has performed forensic child custody evaluations and who has been appointed Guardian ad litem and Parent Coordinator by the NJ Superior Court, Family Division.
Please note, this blog is for information purposes only. It is neither legal nor psychological advice and it does not create an attorney/client or psychologist/patient relationship. If you have a question about a specific matter or issue, you should seek out an attorney or mental health expert to assist you.
Call to schedule a consultation: 201-801-0455
email: jonathan@jdgordonlaw.com
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