NJSBA Family Law Section

I have a slightly unique relocation matter wherein I represent Mom who is the Parent of Primary Residence under a Consent Order entered in Virginia.  When that Order was entered in January 2016, Dad lived in Georgia and Mom lived with the child in Virginia.  They agreed to share joint legal custody and Dad was given every other summer parenting time plus holiday parenting time as agreed by and between the parties.  Mom moved to NJ in October 2016, and now Dad (who saw the child a very limited amount between October 2016 and June 2018 when his summer parenting time began) is seeking to have the child live with him in Georgia--after refusing to return him to NJ over the summer leading to the entry of an Order requiring the return of the child to this jurisdiction.

The Judge is applying the Bisbing ruling; however, I am of the thought that considering the relocation request is Part II of the inquiry--as she would need to first determine that there is a change in circumstances warranting modification of the custodial arrangement wherein it is in the child's best interests to modify custody to have Dad be the PPR.  

Judge indicated that he has no obligation to prove a change in circumstances since they share legal custody of the child. 

Notably--the Judge is relying upon this language to indicate that the inquiry begins with the parents being on equal footing:  "In place of the Baures standard, courts should conduct a best interests analysis to determine "cause" under N.J.S.A. 9:2–2 in all contested relocation disputes in which the parents share legal custody-whether the custody arrangement designates a parent of primary residence and a parent of alternate residence, or provides for equally shared custody."

I may be wrong--but it would appear to me that my case falls within an unanticipated "gap" in the specific language used by the Court--as I find it hard to believe we simply do away with all relevant case law incident to a change in residential custody when a PAR (especially one with very limited parenting time) seeks to remove the child from the State.  

I do recognize that the reality of the situation is that should the Court find that it is in the best interests of the child to move to Georgia to live with his father, it will be able to justify/support the decision to change custody; however, the Judge has already acknowledged that there is no change in circumstances presented in this case, while noting that the standard does not apply which is why the inquiry does not end there.

Any thoughts would be appreciated.

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David Cardamone Esq.
Miller & Gaudio
Red Bank NJ
(908)310-4395
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Original Message------

I have a slightly unique relocation matter wherein I represent Mom who is the Parent of Primary Residence under a Consent Order entered in Virginia.  When that Order was entered in January 2016, Dad lived in Georgia and Mom lived with the child in Virginia.  They agreed to share joint legal custody and Dad was given every other summer parenting time plus holiday parenting time as agreed by and between the parties.  Mom moved to NJ in October 2016, and now Dad (who saw the child a very limited amount between October 2016 and June 2018 when his summer parenting time began) is seeking to have the child live with him in Georgia--after refusing to return him to NJ over the summer leading to the entry of an Order requiring the return of the child to this jurisdiction.

The Judge is applying the Bisbing ruling; however, I am of the thought that considering the relocation request is Part II of the inquiry--as she would need to first determine that there is a change in circumstances warranting modification of the custodial arrangement wherein it is in the child's best interests to modify custody to have Dad be the PPR.  

Judge indicated that he has no obligation to prove a change in circumstances since they share legal custody of the child. 

Notably--the Judge is relying upon this language to indicate that the inquiry begins with the parents being on equal footing:  "In place of the Baures standard, courts should conduct a best interests analysis to determine "cause" under N.J.S.A. 9:2–2 in all contested relocation disputes in which the parents share legal custody-whether the custody arrangement designates a parent of primary residence and a parent of alternate residence, or provides for equally shared custody."

I may be wrong--but it would appear to me that my case falls within an unanticipated "gap" in the specific language used by the Court--as I find it hard to believe we simply do away with all relevant case law incident to a change in residential custody when a PAR (especially one with very limited parenting time) seeks to remove the child from the State.  

I do recognize that the reality of the situation is that should the Court find that it is in the best interests of the child to move to Georgia to live with his father, it will be able to justify/support the decision to change custody; however, the Judge has already acknowledged that there is no change in circumstances presented in this case, while noting that the standard does not apply which is why the inquiry does not end there.

Any thoughts would be appreciated.

------------------------------
David Cardamone Esq.
Miller & Gaudio
Red Bank NJ
(908)310-4395
------------------------------

I agree with the below analysis. This is clearly not a relocation issue and the Judge is misinterpreting Bisbing. There is a distinct difference between legal custody and residential custody, which it appears the Judge does not realize.

Father clearly needs to demonstrate a change in circumstances to warrant a change in residential custody. Bisbing did not alter the legal analysis regarding requests to transfer residential custody.

Sent from my iPhone


Original Message------

 

My initial reaction to these facts is that this isn't actually a relocation case, since neither parent is moving, which is at the heart of a relocation case.  This is a shift in the primary residential custody, which isn't Bisbing at all.

 

 

 

Yours very truly,

 

Alix

 

Alix Claps, Esq.

Heymann & Fletcher, Esqs.

1201 Sussex Turnpike

P.O. Box 518

Mt. Freedom, New Jersey 07970

Phone: 973-895-4400

Fax: 973-895-3005

 

Email: [email protected]

Web: www.heymannfletcherlaw.com

 

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