Dever v. Howell
193 A.3d 869
N.J. Super. Ct. App. Div.2018Background
- Parents (never married) share legal custody of two children; plaintiff was parent of primary residence since 2013. May 1, 2015 consent order permitted relocation to Florida only; it did not mention South Carolina.
- While defendant’s pending motion for overnight parenting time was pending, plaintiff notified defendant on April 3, 2016 he would move the next day and relocated with the children to South Carolina on April 4, 2016 without her consent or a court order.
- A motion judge learned of the move on April 7 and temporarily allowed the children to remain in South Carolina “until further order,” without conducting a N.J.S.A. 9:2-2 cause/best-interests determination.
- Plaintiff returned to New Jersey briefly in June 2016, then again moved the children to South Carolina on July 28, 2016 without consent or a court order; defendant then filed an order to show cause (OTSC) seeking return and custody.
- After a multi-day bench trial, the trial judge found plaintiff knowingly violated N.J.S.A. 9:2-2, ordered the children returned to New Jersey, and denied defendant’s custody modification request; plaintiff sought reconsideration and for the first time asked for a best-interests analysis, which the judge denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether N.J.S.A. 9:2-2 permits a parent to remove children from NJ without prior court authorization when the other parent objects | Statute does not require an order to precede the physical move; court approval can come after removal | When the other parent objects, the relocating parent must obtain consent or a court order upon cause shown before relocating | Court: N.J.S.A. 9:2-2 plainly requires obtaining consent or a court order (showing "cause") before removal when the other parent objects; affirmed return order |
| Whether the May 2015 consent order or the motion judge’s temporary April 7 order authorized the South Carolina move | May 2015 order and temporary post-move order satisfied statutory requirements | May 2015 authorized only Florida; the temporary order made no cause finding and was procedurally deficient to satisfy N.J.S.A. 9:2-2 | Court: May 2015 order did not authorize South Carolina; the motion judge’s temporary order did not satisfy N.J.S.A. 9:2-2 because it made no cause/best-interests finding |
| Who bears the burden and when to show "cause" for relocation under N.J.S.A. 9:2-2 | After unlawful removal, the nonmoving parent should bear the burden on a return motion to show removal is contrary to the children’s interests | Parent seeking relocation bears the burden, by preponderance, to show cause before removal; court must evaluate cause pre-removal to protect noncustodial parent’s relationship | Court: Burden remains on the relocating parent to establish cause before relocation; plaintiff cannot shift burden by relocating first |
| Whether a best-interests (Baures/Bisbing) analysis was required or a guardian ad litem should have been appointed | Plaintiff contended post-judgment that a best-interests analysis should have governed and that a guardian ad litem was required | Trial judge did not perform a pre-removal cause analysis because plaintiff never sought one before or during trial; no adequate basis to require guardian ad litem here | Court: Best-interests/Bisbing analysis is the proper method to determine "cause" in contested moves, but plaintiff never sought pre-move relief; guardian ad litem claim and other arguments lack merit |
Key Cases Cited
- Bisbing v. Bisbing, 230 N.J. 309 (2017) (best-interests analysis governs determination of "cause" under N.J.S.A. 9:2-2 in contested relocations where parents share legal custody)
- Baures v. Lewis, 167 N.J. 91 (2001) (pre-Bisbing standard: relocating parent must show good faith and that the move will not be inimical to the child's interests)
- Cesare v. Cesare, 154 N.J. 394 (1998) (appellate deference principles to family-court fact-finding)