X.L.S. VS. E.R., JR. (FD-16-1866-11, PASSAIC COUNTY AND STATEWIDE) (RECORD IMPOUNDED)
A-0503-20
| N.J. Super. Ct. App. Div. | Oct 29, 2021Background
- Plaintiff (mother) is the child's primary residential parent; parties previously had multiple TROs/FROs after domestic-violence incidents involving defendant (father).
- A 2013 amended Final Restraining Order set parenting time for defendant; parties generally followed that schedule though there were intermittent refusals by plaintiff.
- Plaintiff married a servicemember and moved to California; she filed to permanently relocate the child to California to live with her husband and access military benefits.
- The child was in therapy and the therapist made a referral to the Division of Child Protection and Permanency alleging concerning behavior and possible emotional manipulation by defendant; the Division investigation was incomplete at the hearing.
- The Family Part judge denied relocation after an August 2020 virtual hearing, declined to interview or read a letter from the eleven-year-old child, and made limited factual findings on key issues (defendant’s finances, support/arrears, the child’s therapy/fear).
- The Appellate Division reversed and remanded for further proceedings (including consideration of the child’s preference and use of a mental-health expert) and ordered reassignment to a different judge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper application of N.J.S.A. 9:2-4 best-interests factors for relocation | Relocation is in child’s best interests given military benefits, stable household in California, continuity of IEP and therapy | Extended local family network and continuity favor keeping child in NJ; relocation would harm child’s relationships | Trial court misapplied and failed to develop findings for several statutory factors; reversal and remand for proper best-interests analysis under N.J.S.A. 9:2-4 |
| Failure to consider child’s preference / interview child under Rule 5:8-6 | Court should have interviewed or at least considered child’s written statement; child’s views relevant to disputed facts about father’s home and relationship | Court may decline interview if child lacks sufficient age/maturity or to avoid placing child in parental contest | Court abused discretion by blanket refusal without adequate record; must consider child’s preference and create record under Rule 5:8-6 on remand |
| Incomplete factual findings (therapy, safety, finances, support arrears) | Trial court did not address evidence of child’s therapy, therapist referral, defendant’s arrears and lack of insurance, or how defendant would provide support | Emphasized extended family ties and asserted parental bonds to weigh against move | Court failed to resolve disputed or missing evidence on these material factors; remand required for developed factual findings (and encouraged mental-health expert) |
| Remedy and judge reassignment | Request for fresh, complete hearing on relocation and custody, potentially with expert input | No specific argument preserved in opinion for same-judge rehearing | Appellate court ordered remand for rehearing before a different judge and encouraged use of a mental-health expert; did not retain jurisdiction |
Key Cases Cited
- Rova Farms Resort v. Investors Ins. Co. of Am., 65 N.J. 474 (1974) (standard for appellate review of factual findings)
- Cesare v. Cesare, 154 N.J. 394 (1998) (deference to family court factfinding)
- Bisbing v. Bisbing, 230 N.J. 309 (2017) (apply N.J.S.A. 9:2-4 best-interests framework to relocation disputes)
- D.A. v. R.C., 438 N.J. Super. 431 (App. Div. 2014) (guidance on in-camera interviews of children; record requirements under Rule 5:8-6)
- Mackowski v. Mackowski, 317 N.J. Super. 8 (App. Div. 1998) (interviewing children is delicate but appropriate when needed)
- Luedtke v. Shobert, 342 N.J. Super. 202 (App. Div. 2001) (reassignment when judge has expressed a view that could affect a fresh evaluation)
- Sheehan v. Sheehan, 51 N.J. Super. 276 (App. Div. 1958) (definition of child welfare and best interests)
- Fantony v. Fantony, 21 N.J. 525 (1956) (child welfare encompasses physical, mental, moral, and social well-being)
- A.J. v. R.J., 461 N.J. Super. 173 (App. Div. 2019) (failure to apply correct law or conduct proper best-interests analysis is reversible error)