Requests To Remove Children Out of State to Reside with A Parent Are Reviewed by The Best Interests of The Child
Docket No. A-0898-20
Decided January 19, 2022
Submitted by New Jersey Family Lawyer, Jeffrey Hark.
In a recent unpublished decision the Appellate Division of New Jersey reversed a trial court’s denial of a custody removal application for defendant living in North Carolina and ordered a plenary hearing because of disputed material facts that needed to be resolved.
In T.Z.S., Plaintiff currently resides in a two-bedroom apartment with the children, as well as her four-year-old daughter from a second marriage. Defendant also has a child from his second marriage—he owns a five-bedroom home with his wife and seven-year-old daughter.
When the hearing took place, defendant was significantly in arrears on the child support order—the sum exceeded $75,000. He has enjoyed significant parenting time with the children in North Carolina over summers and holiday breaks.
Defendant testified that the parties’ son, who has been diagnosed with Asperger’s Syndrome, told him plaintiff physically assaulted him on one occasion, pushing him to the ground and kicking him. Plaintiff adamantly denied the incident. Defendant also alleged the son reported that plaintiff had given the child “CBD gummies” to treat his anxiety; plaintiff did not respond to the accusation.
Defendant further claimed that plaintiff’s former husband was charged with abusing the son, resulting in an open case with the New Jersey Department of Child Protection and Permanency (DCPP). Plaintiff did not respond to this contention either. Finally, defendant asserted the children want to relocate to North Carolina.
Plaintiff acknowledged that working three jobs to make ends meet was difficult. During the summer break, even though she never agreed to it, defendant does not pay child support. Plaintiff claimed he has never paid the full amount of $800 per month he was ordered to pay pursuant to the divorce decree—only sending the family about $300 to $400 per month. In plaintiff’s view, defendant’s financial obligations were his real motivation for seeking custody.
In rendering his decision, the trial judge assumed the children would report they wanted to live with their father. He therefore saw no purpose in conducting an interview with them. Relying on Bisbing v. Bisbing, 230 N.J. 309 (2017), and after reviewing the factors enumerated at N.J.S.A. 9:2-4, the court concluded the move to North Carolina would not be in the children’s best interest. The judge focused his decision on the son’s educational needs and the judge’s own unease regarding defendant’s motives in light of his extraordinarily high arrears and unilateral decision to skip paying child support in the summer. The judge did not fully address the allegations of assault or plaintiff giving the son “CBD gummies,” or the existence of an open DCPP file involving plaintiff’s former husband and the parties’ son. The judge merely said he was not provided with adequate proof as to any of those claims.
Defendant appealed. The Appellate Division reversed and remanded, requiring a plenary hearing to resolve the several disputed issues raised by the parties, and the claim the children wanted to reside with Defendant.
Requests to remove children out of state to reside with that parent for the majority of the time are reviewed by the best interests of the child. When there is a factual dispute of important issues, the judge must scheduled a trial (plenary hearing) where testimony will take place and the judge will make a finding as to who is telling the truth. What’s more, the plenary hearing is needed for a claim that a child wishes to reside with the parent living out of state.
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