A.J. v. R.J., ___ N.J. Super. ___ (App. Div. 2019). This opinion by Judge Mawla involved a primary custodial parent (plaintiff) who, due to a rent increase at her Elizabeth residence, moved over 60 miles away to Mount Holly. Her ex-husband (defendant) complained that that move, made without real notice to him, violated the parties’ marital settlement agreement and interfered with his parenting time, since he lived in Union, near where his ex-wife had resided. When plaintiff did not move back to the Elizabeth area despite a court order to do so, defendant got an order from the Family Part changing custody to himself as a sanction for plaintiff’s non-compliance. The basis for that sanction was Rules 1:10-3 and 5:3-7(a)(6).
Plaintiff appealed, and the Appellate Division, applying de novo review, reversed, for two reasons. First, Judge Mawla held, “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.” That did not occur here.
Judge Mawla went on to explain that “[i]n the context of a transfer of child custody as a sanction, affording both parents the ability to address whether a transfer of custody is in the best interests of the children and requiring the court to make the necessary statutory findings provides the necessary process and a reviewable record. Therefore, a best-interest hearing and findings pursuant to N.J.S.A. 9:2-4 is required where a court transfers custody as a sanction.” He rejected, however, plaintiff’s argument that the Family Part was obligated to “select a less severe sanction before it can order a modification of custody.”
The second reason for reversal was that the Family Part used the wrong legal standard in evaluating plaintiff’s intra-state move. That court had relied on Schulze v. Morris, 361 N.J. Super. 419 (App. Div. 2003), in this respect. But Schulze applied the factors of Baures v. Lewis, 167 N.J. 91 (2001), and Judge Mawla observed that the Baures factors “no longer apply when a court is addressing an intra-state relocation, and instead, pursuant to Bisbing v. Bisbing, 230 N.J. 309 (2017) [discussed here], the court must apply N.J.S.A. 9:2-4.” (The Family Part had in fact recognized that Bisbing had overtaken Baures but still relied on Schulze.)
Bisbing had held that N.J.S.A. 9:2-4, which embodies a “best interests of the child” standard, must be applied to interstate relocations. For the same reasons explained in Bisbing, Judge Mawla concluded, the Baures factors should not apply to intrastate moves either, contrary to Schulze. Accordingly, the panel reversed and remanded for further proceedings.