Appellate Division Addresses Custody and Parenting Time Related Sanctions and the Intrastate Relocation Standard in New Decision

In a significant new decision, A.J. v. R.J., ___ N.J. Super. ___ (App. Div. 2019), the Appellate Division addressed both sanctions for violations of custody/parenting time Orders and confirmed that the interstate relocation standard established in Bisbing v. Bisbing must be applied to both interstate and intrastate relocation applications. 


The case stems from Plaintiff, the custodial parent, moving from Elizabeth, NJ to Mount Holly, NJ, approximately sixty (60) miles away, without discussion or consent from the Defendant.  Defendant, the non-custodial parent, who had alternate weekend (Friday to Sunday) and Wednesday overnight parenting time, ultimately filed an Order to Show Cause seeking to compel Plaintiff to return to Elizabeth, NJ or to change primary physical custody to him.  The trial court judge temporarily increased Defendant’s parenting time to three (3) weekends per month, ordered mediation, and scheduled a plenary hearing to determine whether the Plaintiff would be permitted to remain in Mount Holly.  A plenary hearing followed an unsuccessful mediation at the conclusion of which the trial court judge ordered the Plaintiff to return with the children and live within 15 miles of Union, where the Defendant resided.  In that decision, the trial court judge relied on the prior legal standard to determine whether a parent could relocate intrastate.

Following entry of the trial court’s Order, the Plaintiff failed to move back within fifteen (15) miles of Union in violation of the trial court’s Order.  The plaintiff claimed that it was impossible for her to move back because she could not break her lease in Mount Holly, and she could not afford to pay for two residences. 

The Defendant again filed an Order to Show Cause seeking a transfer of primary physical custody to him as a sanction for Plaintiff’s non-compliance in accordance with Rules 1:10-3 and 5:3-7(a)(6). The trial court granted Defendant’s Order to Show Cause and awarded the Defendant primary physical custody of the children.  The Plaintiff appealed the trial court’s Order.

The Appeal

On appeal, the Appellate Division reversed the trial court’s Order on two grounds.  First, the Appellate Division held that “Rule 5:3-7(a)(6) requires a separate adjudication, which considers the children’s best interests and findings pursuant to N.J.S.A. 9:2-4, before the sanction is ordered,” which did not occur here.  Second, the Appellate Division held that the trial court used the wrong legal standard in evaluating Plaintiff’s intrastate relocation by failing to rely on Bisbing v. Bisbing and the factors delineated in New Jersey’s custody statute.

With regard to the sanctions imposed by the trial court, the Appellate Division noted that “because the relief granted under Rule 5:3-7(a) is coercive in nature and derived from Rule 1:10-3, the sanctioned parent may seek termination of the sanction when the parent complies with the court’s order. The court should be solicitous of such applications.”  The Appellate Division reasoned that “[t]his is because custody matters directly impact the welfare of children. The designation of a parent of primary residence is a consequential decision because "the primary caretaker has the greater physical and emotional role" in a child's life. Where there is already a judgment or an agreement affecting custody in place, it is presumed it "embodies a best interests determination" and should be modified only where there is a "showing [of] changed circumstances which would affect the welfare of the children." In the context of a transfer of child custody as a sanction, it is critical that both parents are afforded the ability to address whether a transfer of custody is in the best interests of the children so that the trial court can establish a proper record. Therefore, a best-interest hearing is required where a court transfers custody as a sanction.”  The Appellate Divisions rejected, however, the Plaintiff’s argument that the trial court was obligated to “select a less severe sanction before it can order a modification of custody.” 

As to the intrastate relocation issue, the Appellate Division specifically held that “[b]ecause the science and anticipated outcomes” underlying the prior legal standard (which favored the primary residential custodian) “have not borne out” as anticipated, it eliminated any presumptive notion of relocation in favor of the primary custodial parent and applied the “best interests of the child” standard applicable to interstate relocation matters.  The Appellate Division went on to set the new procedure for intrastate relocation cases stating that “where the parent of primary residence seeks an intrastate relocation and the parent of alternate residence opposes the move, the parent of alternate residence must convince the court the move constitutes a change in circumstances affecting the best interests of the children.”  If the prima facie burden is fulfilled, the court must then assess custody and parenting time by applying the custody statute factors in N.J.S.A. 9:2-4 to determine whether the children’s best interests require a modification of either custody or parenting time.  Notably, as opposed to an interstate relocation request, the initial burden falls on the parent opposing the move to show that the relocation by the parent of primary residence is not in the children’s best interests.

This matter has been remanded to the trial court for application of the Appellate Division’s holdings and consideration of the children’s best interests.  It is likely that we will see this case again in the future. 

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