In pertinent part, the correctly decided case of
Jason Dever v. Debra Howell, Docket No. A-0468-17T3 (App. Div. 2018):
Plaintiff appeals from an August 15, 2017 order entered after a bench trial requiring that he return the parties' children to New Jersey from South Carolina. Judge James H. Pickering, Jr. conducted the trial, entered the order, and rendered a sixty-six page written decision. He concluded that plaintiff unlawfully removed the children from New Jersey without first complying with N.J.S.A. 9:2-2.
¶20 Plaintiff gave defendant less than one day's notice about the move, and although defendant objected, plaintiff moved to South Carolina without first obtaining an order permitting the relocation. Defendant filed an order to show cause (OTSC) seeking custody and the return of the children to New Jersey. The judge found plaintiff knew the statute required that he obtain an order permitting the removal before relocating to South Carolina, but he removed the children anyway, because he feared the court might grant defendant's pending motion for overnight visits with the children. After losing the trial, plaintiff sought reconsideration of the order under review, and for the first time, requested a best interests analysis...
¶52 Plaintiff argues that once he relocated with the children to South Carolina - without defendant's consent or a court order - defendant had the burden to show that plaintiff lacked cause to remove them from New Jersey before the judge could mandate their return. Plaintiff suggests that defendant would do that by demonstrating that it would be in the best interests of the children to return them to New Jersey. According to plaintiff's logic, defendant would need to file a motion to return the children who he had removed in violation of N.J.S.A. 9:2-2, and as part of that motion, assume the burden.
¶53 Such an approach would encourage individuals to first remove children from this jurisdiction, then later seek court approval. When the other parent objects beforehand, the process envisioned by N.J.S.A.9:2-2 is for the parent seeking to relocate to first apply for an order permitting relocation, establish "cause," then relocate only if permitted by the court. The process does not permit a parent to relocate and then attempt to shift the burden to the other parent to show on an application to return the children that it would be in their best interests to do so.
¶54 When the other parent objects, the parent seeking removal of the children has the ultimate burden of proof by the preponderance of the evidence. Requiring the burden of proof to shift to defendant to show that it would be in the children's best interests, as a condition precedent to returning them to New Jersey, ignores the Legislature's reason for requiring a preliminary demonstration of "cause" under N.J.S.A. 9:2-2 before the actual removal. It is to "preserve the rights of the noncustodial parent and the child to maintain and develop their familial relationship." Bisbing, 230 N.J. at 323 (citations and internal quotation marks omitted). Under the facts of this case, preserving defendant's rights to maintain and develop her familial relationship with the children required - by the plain text of N.J.S.A. 9:2-2 - that plaintiff first obtain an order, before removing the children, by showing "cause" existed for the relocation to South Carolina.
¶55 Plaintiff had numerous opportunities to apply for an order permitting the move before relocating to South Carolina. He could have filed such an application after the parties consented to the May 2015 order, when it became apparent to him that he would not be following through on his intention to live in Florida with the wife. Or plaintiff could have filed an OTSC immediately after defendant first objected to the move on April 3. There was no basis whatsoever to move the children to South Carolina without plaintiff first obtaining a court order to do so.
¶56 If plaintiff sought an order in April 2016, before he removed the children from New Jersey, the judge would have analyzed whether "cause" existed for the removal by applying the Baures standard. That is, plaintiff (as the parent seeking removal) would have had the burden of establishing "cause" under N.J.S.A. 9:2-2 by showing "good faith and that the move will not be inimical to the [children's] interest." Id. at 324 (quoting Baures, 167 N.J. at 116) (internal quotation marks omitted). And if he had sought such an order, the judge would have considered at a minimum the twelve factors relevant to his burden of proof. Baures, 167 N.J. at 116-17. Those factors would have been:
¶57 (1) the reasons given for the move; (2) the reasons given for the opposition; (3) the past history of dealings between the parties insofar as it bears on the reasons advanced by both parties for supporting and opposing the move; (4) whether the child will receive educational, health and leisure opportunities at least equal to what is available here; (5) any special needs or talents of the child that require accommodation and whether such accommodation or its equivalent is available in the new location; (6) whether a visitation and communication schedule can be developed that will allow the noncustodial parent to maintain a full and continuous relationship with the child; (7) the likelihood that the custodial parent will continue to foster the child's relationship with the noncustodial parent if the move is allowed; (8) the effect of the move on extended family relationships here and in the new location; (9) if the child is of age, his or her preference; (10) whether the child is entering his or her senior year in high school at which point he or she should generally not be moved until graduation without his or her consent; (11) whether the noncustodial parent has the ability to relocate; (12) any other factor bearing on the child's interest.
¶58 [Ibid.]
¶59 If plaintiff had not unilaterally removed the children and sought an order permitting the removal after the Court decided Bisbing on August 8, 2017, then the judge would have analyzed whether cause existed for the removal by applying the Bisbing standard. In place of the Baures standard, the Court stated in pertinent part that courts
¶60 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 . . . . A number of the statutory best interests factors will be directly relevant in typical relocation decisions and additional factors not set forth in the statute may also be considered in a given case.
¶61 In the best interests analysis, the parent of primary residence may have important insights about the arrangement that will most effectively serve the child. The parent of alternate residence may similarly offer significant information about the child. The views of other adults with close relationships with the child may also inform the court's decision . . . . The trial [judge] may consider other evidence, including documentary evidence, interviews with the children at the [judge's] discretion, and expert testimony.
¶62 [Bisbing, 230 N.J. at 335 (citations omitted).]
¶63 The Court concluded that under N.J.S.A. 9:2-2, "'cause' should be determined by a best interests analysis in which the court will consider all relevant factors set forth in N.J.S.A. 9:2-4(c), supplemented by other factors as appropriate." Id. at 338 (emphasis added). Because plaintiff never made such an application, the parties and the judge never argued what other factors might be relevant to relocation.
¶64 Therefore, under either Baures or Bisbing, had plaintiff sought an order under N.J.S.A. 9:2-2 to remove the children from New Jersey, plaintiff had the ultimate burden to show "cause" for the desired removal. But the judge and parties never reached that step because plaintiff unlawfully removed the children. We flatly reject plaintiff's burden-shifting contention.
But, of course... The noive of some people. Appellant, please!
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Curtis J. Romanowski, Esq.
Ocean, NJ 08840
732.603.8585
[email protected]------------------------------