New Jersey has a statute of longstanding, N.J.S.A. 9:2-4 that prevents a parent from removing a child permanently from New Jersey to an out-of-state location, unless the removing parent obtains the consent of the other parent or an order of the trial court.  In practice, the words of the statute have remained unchanged for decades, but the Supreme Court, Appellate Division, and trial courts have engaged in interpretation and re-interpretation of the law for many years.  Some judicial interpretations favored the resisting parent; some the removing parent.

Until recently, a proposed permanent removal of a child or children from Bergen County to New York could be denied on the basis of New Jersey’s “out of state” removal standards, whereas a custodial parent seeking judicial permission to move a child from High Point, NJ, to Cape May could be deemed “in state,” and therefore granted.  Paradoxes abounded.

New Jersey’s Appellate Division decided an important new case this month, issuing a “precedential” opinion.  The case involved the legal standard to be used when a parent seeks to permanently remove a child to a location not out-of-state, but in-state.

In A.J. vs. R.J., the trial court entered an order switching the children’s custody from mother to father, the trial court having determined that mother’s permanent unilateral removal of the children 62 miles, from Elizabeth to Mt. Holly, should be sanctioned by the custodial turnover. Mother appealed that decision.

On appeal, the Appellate Division determined the case had to be remanded to the trial court, because the trial court used the wrong legal standard to determine the outcome.  Under previous case law, trial judges were directed to use the Supreme Court’s Baures vs. Lewis standards, which focused on out-of-state relocations and many factors relating to what was in the best interests of the primary custodial parent.  However, the Supreme Court in recent years overruled the Baures factors, finding in Bisbing vs. Bisbing that the best interests of children is the polestar for the trial court, and nothing else.

The Appellate Division in A.J. vs. R.J. determined that the change in the law regarding permanent out-of-state removal standards must, perforce, require a change from Baures to Bisbing even in the in-state relocation setting.

The Appellate Division remanded the case back to the trial court with instructions to re-hear and re-determine the parties’ controversy, applying the new “best interests” standard to the in-state relocation.

Importantly, the Appellate Division instructed all trial judges that, going forward, no judge shall sanction a party by removing and re-assigning child custody to the other parent unless the court also finds that the custodial change is in fact in the child’s/children’s “best interests”.

The significance of the A.J. vs. R.J.  decision is threefold:

1. The case sets a precedent for all future cases involving similar circumstances.  This is an instruction from the Appellate Division to the trial courts that the trial courts must accept, adopt, and obey.
2. The case creates a uniformity of treatment in terms of the factors to be applied in cases of permanent removal of children, whether the removal is out-of-state or in-state.  This is a significant development, because in the past different judges have looked at similar circumstances differently, creating a lack of uniformity and predictability in cases that are essentially the same.
3. The case declares it an improper practice for a judge to punish with a custodial transfer a party who has broken a court order.  The trial courts are now directed to assess not only that the party who breaches a court order deserves to be punished, but also whether the custodial transfer is in fact in the child or children’s best interests.  This is an important and positive change in the law, one to be applauded for its sensitivity and common sense.

The New Jersey Legislature and the courts have an excellent reputation throughout the United States for being progressive, fair, and child-focused.  A.J. vs. R.J. continues that tradition.  Attention should be paid.

If you or someone you know has a crisis or concern about child custody, family law, out-of-state removal of a child or children (whether proposing or resisting), it is essential to get advice on the facts and law from experienced legal counsel.  We will listen to your facts, advise you on the law, and seek solutions that are just and right for you, and in the best interests of your child or children. 

Call or write us for a near-term and reduced fee initial consultation.  Call today.  You will be glad you did.