New Jersey State Bar Association
Bergen County Bar Association

Moving out of New Jersey With Twin Daughters

GavelIn a recent New Jersey child custody decision, the court considered a case in which spouses with twin daughters had agreed on the terms of a marital settlement agreement. With regard to their twin daughters, the agreement gave the mother primary residential custody. There was also a provision stating that neither parent would permanently relocate with the kids out of the state without the other's prior written consent.

In 2014, the lower court entered a divorce judgment and incorporated the agreement's terms. In the following year, the mother told the father she planned to marry a Utah resident. She asked the father to agree to the kids' permanent relocation to Utah. The father said she could go, but the kids had to stay in New Jersey with him.

The mother filed a motion under N.J.S.A. 9:2-2, asking the court to allow her to permanently relocate the kids to Utah. The father claimed the mother had negotiated in bad faith and had gotten his consent to her being designated as the parent of primary residence without letting him know she intended to relocate. The trial court used a standard established in a prior case that the parent who has primary custody and is trying to relocate the kids out of state over the other parent's objection has to show a good-faith reason for an interstate move and show that it won't be adverse to the kids' interests. In this case, the application was granted because the mother presented a good-faith reason, and it wouldn't be inimical to the kids' interests.

She moved to Utah and enrolled the kids in elementary school. The appellate court reversed and found there was a factual issue about whether the mother had negotiated the agreement in good faith. It found that if the court determined she'd acted in bad faith, it should determine the relocation by using the best interests standard rather than the standard that it wasn't inimical to the kids' interests.

The appellate panel held that if the father couldn't prove bad faith by the mother, the lower court should then decide whether the mother had shown a substantial and unanticipated change in circumstances that would allow her to avoid the relocation provision. The lower court was ordered to apply the best interests standard if the plaintiff couldn't show a substantial and unanticipated change.

The plaintiff went with her kids to New Jersey. The lower court denied her request for a stay and ordered the couple to follow the residency provisions in the agreement. The New Jersey Supreme Court held that it had a special justification to abandon the standard established for contested relocation decisions. It held that a court should use a best interests analysis to decide whether there's cause under N.J.S.A. 9:2-2 whenever relocation is contested and custody is shared. The altered standard was based on social science research and the trend easing restrictions on the right to relocate with kids. In this case, the New Jersey Supreme Court found that in a best interests analysis, either custodial parent's views may inform the court's decision. Documentary evidence, interviews with the kids, and expert evidence may also be considered. It found that, contrary to the mother's argument, N.J.S.A. 9:2-2 didn't infringe on her right to travel. Instead, it restricted her right to move her kids and relocate them in contravention of the agreed-upon custody arrangement.

The Court sent the case back to the lower court to determine whether the custody arrangement should be modified to allow the relocation of the twins to Utah. The agreement would be significant to the court's decision, and the mother would have to show cause under a best interests analysis.

If you are considering a divorce in Bergen County, and you are concerned about child custody, it is important to retain an experienced and aggressive attorney to seek an appropriate outcome. Contact the lawyers of Leopold Law at (201) 345-5907 or through our online form. We have attorneys available who can handle all aspects of a divorce.

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