For decades I have been practicing as a family law and divorce lawyer in my hometown of East Brunswick, New Jersey. An extremely common issue that comes across my desk is when my client would like to relocate with children. Whether the move will be interstate or intrastate, I know that relocating can potentially impact the parenting time schedule that has been in place. While it may be more difficult for the children to maintain regular contact with the other parent, the court does not always prohibit relocating within New Jersey or out of state, especially if the parties address the possibility of a move beforehand in a settlement agreement. That was the issue in the recent New Jersey Appellate Division case of Clemas v. Clemas.
In the case the parties were married in 1998. Two children were born of the marriage in 2003. In January 2012, a dual judgment of divorce from Bed and Board was entered into, which incorporated the parties’ marital settlement agreement. Pursuant to the settlement agreement, the parties agreed to share joint legal custody of their two children, with the mother designated to be the primary residential custodian. Furthermore, the parties agreed to select Bridgewater as the school district the children would be enrolled in as long as one party was living in the district. However, the agreement provided that if either party applied to the court to convert the divorce from Bed and Board (to learn more about a divorce from Bed and Board, please see my blog, "In a New Jersey Divorce, What Does Bed & Board Mean") into a final judgment of divorce, the provision would be null and void.
In April 2014, the mother filed a motion to convert the judgment of divorce from Bed and Board into a final judgment of divorce. The father had learned from his kids that their mother intended to move from Bridgewater to Egg Harbor. As a response, he decided to cross-move and sought an order to restrain her from doing so. After each party’s attorney presented their case before the court, the judge entered an order converting the divorce from Bed and Board into a final judgment of divorce. The trial court also denied the father’s request to restrain his ex-wife from relocating to Egg Harbor. He appealed.
On appeal, the father argued that the trial judge erred by allowing his ex-wife to relocate with the children. He alleged that the trial judge ignored a provision of the parties’ settlement agreement, which indicated that the mother, as the primary residential custodian, was not given an enhanced parenting authority. However, the Appellate Division disagreed with the father’s argument and affirmed the findings of the lower court.
The Appellate Division stated that in a custody case, the court’s primary goal is to consider the best interests of the child. While in a typical contested custody case, the court would have to consider and apply a set a statutory factors found in N.J.S.A. 9:2-4(c) to determine the best interests of the child, the court noted that “when matrimonial litigants reach a settlement on issues pertaining to child custody, support and parenting-time, the court does not inquire into the merits of the agreement.” The Appellate Division stated that the motion judge, having reviewed the settlement agreement, found that as the primary residential custodian, the mother was allowed to move from Bridgewater to Egg Harbor. The trial court correctly rejected the father’s argument that the language of the settlement agreement prevented his ex-wife from having “enhanced parenting authority” and concluded that the language utilized referred to the parties making joint legal custody decisions; it did not prohibit the mother from relocating within New Jersey.
Additionally, the Appellate Division held that the trial court properly determined that it was the father’s responsibility to show that moving would negatively impact the best interests of his children. He failed to provide a reason why the new school district could not accommodate his children’s needs. Furthermore. The father failed to demonstrate that he wouldn’t be able to maintain the same parenting time schedule or a reasonable alternative once the children relocated with their mother.
Moreover, the Appellate Division held that the trial court accurately determined that the parties had impliedly considered the possibility of the mother moving within New Jersey once either party moved to finalize the divorce. With that said, the court correctly determined that the parties had considered the possibility that the children would no longer attend school in Bridgewater once the divorce was final.
Although the court noted that the trial judge considered the interests of the children, such as the potential inconvenience of mid-week overnight visits due to the distance between Bridgewater and Egg Harbor, it ultimately found that the father had not shown that “no reasonable alternative would afford him appropriate parenting-time.”
The main takeaway from this hot new case is that if parties provide for the issue of relocation in their settlement agreement, it is crucial to look carefully at the language used before a court will make a final determination. For more questions, do not hesitate to contact my office today. Thank you.