Relocation with children is always a hot button issue. That said, since the Supreme Court decided Bisping in 2017 (which we previously blogged on), relocation got more difficult because it became largely a best interest analysis.

Most of the time, these cases are started with one parent asking for permission to move. On the other hand, some cases start with self-help, i.e. a parent going somewhere on false pretenses (a vacation, to visit family, etc.) and then never comes back.

That is what happened in the K.K. v. L.K. case that I blogged about earlier this week (for the proposition that true 50-50 parenting time is rare and not required by the statute.)

In that case, the parties were married in 2017 and had two children who were 3 and 5 at the time of trial. The 5 year old was born in California; the 3 year old was born in New Jersey. The parties resided together in New Jersey, that defendant and the kids often returned to live with her parents in California during separations.

In January 2021, the family took a vacation to California to visit defendant’s family. Near the end of the stay, the defendant decided to remain in California while plaintiff had to return to New Jersey early to operate his business. This was apparently the norm. After he left, Defendant sent plaintiff an on line real estate listing for a house in New Jersey stating “[l]et’s buy it [p]leaseeeee.”

In February, when plaintiff asked defendant when they would be coming home, she told him that they weren’t and blocked his telephone number. He filed a Complaint for Divorce on February 10, 2021. Seemingly, error #1 was not also filing an Order to Show Cause at the same time seeking the return of the children.

On June 23, 2021, the trial court entered a Case Management Order memorializing that defendant was in California with the children, and the parties would resolve matters by either entering a parenting time plan or through an “order to show cause (OTSC) to be filed to return the children.” Throughout the remainder of 2021, the record reflects the parties attended an Early Settlement
Panel and were engaged in attempts to settle the divorce, including exchanging settlement proposals and a draft marital settlement agreement.

Almost a full year after the Complaint was filed, following an Intensive Settlement Conference, with the kids still in California, the court first referred the parties to parenting time mediation and said that a best interests hearing would be conducted if the mediation failed. On February 23, 2022, the Court, on its own motion, entered an order requiring the defendant to return the children to NJ immediately.

A full month later, defendant filed an Order to Show Cause seeking to stay the February 23rd Order and to remain in California which the court inexplicably granted (unless you consider the February 23rd Order to be inexplicable.)

The parties then retained experts and the matter was frequently “case managed” throughout the rest of 2022. Trial was supposed to commence in February 2023, but then was adjourned to March and then September.

In March, plaintiff filed a motion seeking the return of the children pending a divorce. The Court denied the motion but granted him summer parenting time and allowed him to renew his application if the trial didn’t start in September. The order stated: “No bias, prejudice, or inferences shall be made due to the children having been temporarily relocated to California.” As if that was even possible given the fact that the children were there for more than two years already.

The matter was tried over five days, culminating in the trial judge rendering a detailed oral opinion on April 24, 2024, almost 39 months after the matter commenced. Justice delayed was justice denied indeed as the trial judge did not require the return of the children.

Defendant testified that “The children had resided in California since January 2021 and removing them would harm them because they had a stable home life there” and that coming back to New Jersey would be disruptive!

In addressing the fact that the parties did not present “substantial evidence” regarding the children’s needs, “… the judge noted plaintiff placed his interest in seeing the children over their happiness, and defendant did not fully appreciate how the separation impacted the children. This is somewhat mind blowing as he was not the one that created the separation.

Further, despite the prior Order regarding no inferences about the children being in California, in addressing that one of the children would have to move and change schools, the trial court noted, “However, reducing any stress which could be caused by having to adjust to a new environment would be in the best interest[s] of the children.”

The decision from the trial court was as follows:

The judge concluded that designating defendant the parent of primary residence and allowing her to remain in California would continue the role she had during the marriage and allow the children to maintain their activities, friendships, medical care, and education. Under these circumstances, the judge concluded removing defendant as the parent of primary residence was not in the children’s best interests and requiring her to return to New Jersey was not a viable option.

This holding seems to ignore that since she left New Jersey, she could come back to New Jersey and be the parent of primary residence here.

Defendant was awarded most of the summer vacation, all long weekends when the kids don’t have school, alternating Thanksgiving and Easter breaks and half of the Christmas break. Oh, and daily telephone and video calls, plus, he could come to visit in California in months that he didn’t have parenting time.

Surprisingly, the Appellate Division affirmed this decision. While plaintiff argued that the court did not consider the children’s best interests, but the defendant’s (consistent with the pre-Bisbing law which was Baures v. Lewis, the Appellate Division disagreed and noted that:

…it was reasonable, indeed expected, that the trial judge would discuss the parties’ living circumstances in New Jersey and California, their extended family relationships, and their
working conditions. However, this did not transform the judge’s findings into a Baures analysis.

The next paragraph is even more head scratching. It was as follows:

We are unconvinced the fact that the children were permitted to remain in California pendente lite either improperly shifted the burden of proof onto plaintiff or tainted the outcome of the case. The record not only shows a history of travel and residency on both coasts, but also that the parties’ relationship endured tumult and defendant’s decision to remain in California was borne of the breakdown in the parties’ relationship, rather than a desire to prevent plaintiff from having custody or parenting time. Under the circumstances, it was reasonable for defendant to remain in California as she did not have a means of residing independently with the children in New Jersey. Given that the evidence supports the judge’s finding that defendant fulfilled the role of the children’s primary caregiver as defined by Pascale, it would be unreasonable to compel her to return to New Jersey without a means of supporting herself and the children and living independently of plaintiff. The argument that the court shifted the burden of proof lacks merit.

The Appellate Division went on to state:

Many of plaintiff’s disagreements with the trial judge’s findings, particularly best interests factors two, eight, eleven, twelve, and thirteen, are predicated on his view that defendant’s residence with the children is unlawful. However, we affirmed the trial judge’s rejection of this argument.

While maybe not unlawful, it is hard to read this case and think that the outcome would not have been different if the children were immediately ordered back to New Jersey. The parties could have lived together during the divorce, like many parents do, and fought the custody fight without one parent having the advantage of remaining in another state, perhaps under false pretenses, and without the permission of the other parent. Moreover, the fact findings that the court deferred to had baked into them the advantages that one parent had having custody of the children away from the other parent.

The Appellate Division also doesn’t address the other elephant in the room. Custody cases are supposed to be prioritized under the system.. Rule 5:1-4 (a) defines the Priority Track as a case that involves custody and parenting time issues. In this case, it was almost 31 months between Complaint and trial and more than 38 months between Complaint and decision. On a custody case! All that time, the children were in a state that was not their home state as the law would define it.

The takeaway here, perhaps, is that if children are taken out of state, without consent, an immediate application for their return seems to be required, lest one risk being disadvantaged by the delays in the system given the other parent de facto residential custody, for years. Moreover, perhaps there should be no attempts to settle until the children are returned. Particularly in relocation cases if the removing party was never offering to bring the kids back.

In any event, this case truly embodies the saying “justice delayed is justice denied.”

_______________________________

    Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Department of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys. Eric is resident in Fox Rothschild’s Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973) 994-7501, or esolotoff@foxrothschild.com.