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Relocating Children under a Marital Settlement Agreement

By Snyder Sarno D'Aniello Maceri & da Costa LLC on June 16, 2017


The parties in Lomangino v. Lomangino were married for eleven years with two children being born prior to Plaintiff filing for divorce.  Defendant operated his father’s business while Plaintiff was employed as a government contractor.  Their final judgment of divorce incorporated a marital settlement agreement (MSA) that provided joint custody of their two children, with Plaintiff designated as parent of primary residence.  As an additional piece of the MSA, and an integral part, the children would continue to attend Tinton Falls public school system where Defendant resides. 

Plaintiff’s employer subsequently asked Plaintiff to relocate to Maryland or accept termination.  She immediately filed an order to show cause seeking to relocate with the children to Maryland.  The trial judge denied her order to show cause.  Even after a seven-day plenary hearing, a different judge denied her request to relocate with the children. 

Plaintiff appealed the lower courts’ decision, alleging that it failed to correctly apply the test under Baures v. Lewis, which states that the moving party has the burden of proof to produce evidence establishing prima facie evidence that: (1) there is a good faith reason for the move, and (2) that the move will not be inimical to the children’s interests.  Specifically, Plaintiff argues that the judge failed to consider that her job transfer constituted “changed circumstances” entitling her to modification of the MSA. 

The Appellate Division affirmed the trial court and held that, because Plaintiff did not show that her job transfer was unanticipated, she must effectively demonstrate that the non-relocation provision in their MSA is no longer in the best interests of the child.  Of importance to the judge was the fact that testimony established that Plaintiff tried to limit the children’s time with Defendant prior to her application.  The judge thought that by relocating to Maryland, Plaintiff may try to prevent the children from the daily contact with their father that the MSA intended.  The court also felt that the children could benefit from the presence of extended family in New Jersey. New Jersey gives great deference to consensual agreements, and the court emphasized that the parties would not have entered into the MSA had they not thought it to be in the best interests of the children. 

Under New Jersey law, where parties agree on a non-relocation provision in an MSA, a plenary hearing must be held to determine whether the agreement was negotiated in bad faith, before a party decides to relocate with any children born of the marriage. Bisbing v. Bisbing, 445 N.J. Super. 207, 213 (App. Div. 2013).  If bad faith is found, a “best interests of the child” analysis must be conducted.  Id.  If no bad faith is demonstrated, a trial court must then consider whether the relocating party proved a substantial unanticipated change in circumstances warranting a breach of the non-relocation provision.  If the MSA was negotiated in good faith, but the relocating party fails to satisfy his or her burden of proving a substantial unanticipated change in circumstances, the court must apply the “best interests of the child” analysis.  Id. 

In Bauers v. Lewis, cited by the Plaintiff in Lomangino, the court emphasized twelve factors to consider in removal cases.  A few of the most important factors New Jersey courts look at include: (1) the reason for the move; (2) whether the child will receive at least equal opportunities in education, health, and leisure opportunities; (3) whether a visitation and communication schedule can be developed with the non-custodial parent; and (4) the effect of the move on extended family relationships.            

If you have any questions regarding relocation, contact the skilled matrimonial attorneys at Snyder Sarno D’Aniello Maceri & da Costa LLCCall us today at (973) 274-5200.             

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