Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

When A Final Restraining Order Addresses Child Custody And Parenting Time, Is That Decision Final?

As an attorney here in Middlesex County I am well aware that a New Jersey Family Court may address child custody and parenting time issues when issuing a final restraining order.  A recent case also confirmed the understanding that both myself and the other attorneys at my law firm have, which is that while the restraining order may be “final,” any determinations as to child custody and/or parenting time are not (including any decisions to allow one party to remove the child from the state of New Jersey).  

In Schulze v. Morris, father Robert Schulze appealed an order of the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County that denied his application to compel the mother, Lisa Morris, to move with their child from one county to another. Both Robert and Lisa had joint legal custody of the child, with Lisa serving as the residential custodian. Both Lisa and Robert mutually agreed to a parenting time plan that allowed Robert visitation rights. The parents jointly owned a condominium in Middlesex County, and they agreed that Lisa could reside there until December 31, 2001. Lisa had the option to vacate and move out of that condominium earlier if she so chose to. Unfortunately, Lisa was not offered tenure at her job as a school teacher, so she sought out a new position elsewhere, and decided to move to Sussex County. The specific circumstances did not constitute a statutory removal action under New Jersey Statute 9:2-2 that would require court approval for the proposed move. The move, however may have constituted a substantial change in circumstance warranting a modification of the parenting agreement. On appeal, The New Jersey Appellate Division stated it would not be appropriate to hinder a mother’s ability to secure a job and lifestyle that was in the child’s best interest, and found that the trial court properly held that the mother was permitted to move within the state. 

On February 23, 1998, the Family Part entered a final judgment of divorce, and dissolved Lisa and Robert’s marriage. As a result, their child, Robert Schulze III, was placed under joint legal custody of the parents, with Lisa serving as the residential custodian. Robert was a trauma surgeon at the time of the divorce, and was temporarily relocating to Maryland on or about July 1, 1998 in order to perform a fellowship at the University of Maryland. Lisa and Robert mutually agreed to a parenting plan that allowed Robert to exercise parenting time with the child on alternate weekends, plus one overnight visit during the week. They also agreed to share holidays and extended vacation time. Once Robert’s residency in Maryland started, he was to have parenting time with his son during two weekends each month, one weekend in Maryland, and one weekend in New Jersey. It was expected that Robert would return to live in New Jersey on or close to July 1, 1999. At this date of return, Robert’s parenting time would be renegotiated, and if for some reason the parties could not amicably resolve the issue, either party could apply to the Court to set and fix the parenting time schedule. 

At the time of divorce, Robert and Lisa jointly owned a condominium at 32 Keith Court in Kendall Park, Middlesex County. The settlement agreement that was incorporated into the final judgment of divorce, allowed Lisa to live in the condominium until December 31, 2001. Lisa could choose to leave the condominium at an earlier date, but she agreed not to file a motion to reside outside New Jersey with their child before June, 30, 2000, that is unless Robert failed to return to New Jersey after his fellowship came to an end. The settlement agreement also provided that when Lisa left the condominium it would be sold and the profits would be divided equally between the parties. In the alternative, she could choose to buy Robert’s interest in the condominium. The factual record indicated that in April and May of 2000, the parents discussed Lisa’s attempts to secure sufficient financing to purchase Robert’s interest in the condominium. She could not secure the financing however, and instead decided to sell the condominium and move to the Sussex County area. 

After returning to New Jersey, Robert took a job at Kings Hospital Center in Brooklyn, New York. He remarried and moved to a new house in Metuchen, Middlesex County. Lisa worked as an elementary school teacher, and worked in the Highland Park School District in Middlesex County. At the end of three years, however, she was not offered tenure. Therefore, she sought a teaching position somewhere else, and as a result decided to move to Vernon in Sussex County. By way of an application filed by Robert, an order to show cause was entered on June 27, 2000, which directed Lisa to show cause why she should not be restricted from moving the child outside the boundaries of Middlesex County. Robert also sought a custody evaluation and a plenary hearing related to his motion for a change in residential custody. Lisa filed a cross-motion seeking an order compelling Robert to participate in mediation for the purpose of establishing a parenting time schedule. After the hearing on July 21, 2000, the court entered an order on August 17, 2000, which directed that a plenary hearing be scheduled within ninety days regarding whether Lisa could relocate with the child of the marriage to Vernon Township, New Jersey. The order also required the parties to take part in mediation in an effort to resolve the matter. Lisa was allowed to move with the child to Vernon Township, and a temporary parenting time plan was ordered. The order also stated that Robert had not established a substantial change in circumstance which would allow a change in residential custody. The trial court granted a motion for summary judgment in favor of Lisa and dismissed the matter. The trial judge stated that because Lisa was merely relocating within state there was no need for heightened scrutiny. The judge saw no reason to inhibit Lisa’s ability to find work and provide a lifestyle that is in the best interest of her and her child. There was no reason why the parents could not renegotiate a parenting schedule. 

On appeal, Robert argued that Judge Pullen was wrong in her assessment of the role of visitation in his motion for relocation. The New Jersey Appellate Division stated that the standard of review applicable to a motion by a residential custodial parent to remove a child from New Jersey over the wishes of the other parent comes from New Jersey Statute 9:2-2. The laws purpose is to preserve the rights of the non-custodial parent and the child to maintain and develop their familial relationship. The law, however, only applies to instances when a parent is trying to move the child out of state. The high standard of scrutiny required by New Jersey State 9:2-2 is not necessary when a residential custodial parent who desires to move, with the child, from one location in New Jersey to another. Therefore the trial court finding that Lisa may move to Vernon Township with the child was appropriate. 

The New Jersey Appellate Division noted that even though it was not so presented in this case, the relocation of a child by a residential custodial parent from one location in New Jersey to another could potentially have a significant impact on the relationship between the child and the non-residential custodial parent that might warrant a modification of the custodial and parenting time arrangement. In the instant case, Robert failed to appeal that section of the court’s August 17, 2000 order that stated he had failed to establish a substantial change of circumstances that would permit a change in residential custody. Therefore the New Jersey Appellate Division affirmed the trial court’s decision.  

If your family has been effected by restraining order, please contact my office today.