NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-1553-18T3
Submitted December 3, 2019 – Decided January 17, 2020
Before Judges Fisher and Rose.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FM-02-2853-14.
Sunshine, Atkins, Minassian, Tafuri, D'Amato &
Beane, PA, attorneys for appellant (Jay R. Atkins,
Stacey L. Miller and Christian L. Beane, on the briefs).
Dario, Albert, Metz, Eyerman, Canda, Concannon,
Ortiz & Krouse, attorneys for respondent (Shelley D.
Albert and Paul J. Concannon, on the brief).
We use initials to protect the privacy of the parties.
In this post-judgment dissolution matter, plaintiff ex-wife appeals one
paragraph of a multi-faceted Family Part order, denying her ability to relocate
with the parties' three unemancipated daughters to Illinois. The motion judge
denied plaintiff's application without prejudice pending the outcome of litigation
filed by the Division of Child Protection and Permanency (DCPP), which
restricted defendant ex-husband's visitation with the children. Because we
conclude the judge erroneously rejected plaintiff's application on that factor and
there exist disputed factual issues concerning the best interests of the children,
we vacate the order and remand for a plenary hearing.
Our review of a Family Part order is limited. See Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). Generally, the Family Part's factual findings "are
binding on appeal when supported by adequate, substantial, credible evidence."
Id. at 411-12. That traditional standard of review is expanded when the court
committed an alleged error in evaluating the underlying facts. MacKinnon v.
MacKinnon, 191 N.J. 240, 254 (2007). Challenges to legal conclusions, as well
as the trial court's interpretation of the law, are subject to our de novo review.
Ricci v. Ricci, 448 N.J. Super. 546, 565 (App. Div. 2017).
Under N.J.S.A. 9:2-2, a parent who seeks to remove a child from this State
when the other parent does not consent must demonstrate "cause" for the
removal. Our Supreme Court has interpreted "cause" as requiring the petitioning
parent to satisfy the best interests analysis set forth in the custody statute,
"supplemented by other factors as appropriate." Bisbing v. Bisbing, 230 N.J.
309, 338 (2017) (citing N.J.S.A. 9:2-4(c)). The statutory factors include:
the parents' ability to agree, communicate and
cooperate in matters relating to the child; the parents'
willingness to accept custody and any history of
unwillingness to allow parenting time not based on
substantiated abuse; the interaction and relationship of
the child with its parents and siblings; the history of
domestic violence, if any; the safety of the child and the
safety of either parent from physical abuse by the other
parent; the preference of the child when of sufficient
age and capacity to reason so as to form an intelligent
decision; the needs of the child; the stability of the
home environment offered; the quality and continuity
of the child's education; the fitness of the parents; the
geographical proximity of the parents' homes; the
extent and quality of the time spent with the child prior
to or subsequent to the separation; the parents'
employment responsibilities; and the age and number
of the children.
Against that legal backdrop, we turn to the facts pertinent to this appeal,
recognizing the protracted and highly contentious history, occasioned by media
coverage of the disputes between the parties. Relevant here, the parties married
in 2000 and divorced in 2017. Three children were born of the marriage in 2002,
2004 and 2011. For all but five years – when defendant played professional
football for a team based in Florida – the parties resided in New Jersey. Neither
party lived in New Jersey prior to the marriage; they lived in thi s State when
defendant played football for a New York area team.
The judgment of divorce incorporated a consent order, which granted both
parties joint legal and residential custody of the children, and designated
plaintiff as the parent of primary residence. Sometime thereafter, DCPP
commenced an investigation of defendant for reasons that are unspecified in the
record. As a result of that investigation, defendant's parenting time with the
children was limited to supervised visitation.
Claiming the ongoing DCPP action rendered her a "de facto sole custodial
parent," plaintiff moved for permission to relocate with the children to Chicago,
where her parents and extended family reside and a job opportunity at her
father's car dealership awaits her. Plaintiff's application included undated text
messages – purportedly from the children – that described defendant's drug use,
court records related to defendant's harassment charges, and academic
performance data for the schools the children would attend in Illinois.
Defendant filed a dueling certification, contending plaintiff's "application
[wa]s a mere continuation of the [s]corched [e]arth policy and her efforts to
extend beyond divorce to permanently deprive [their] children from a
relationship with [him], as well as to financially devastate [him] and any future
prospects of employment." According to defendant, plaintiff failed to
demonstrate relocating to Chicago would be in the best interests of the children,
who have lived in New Jersey for most of their lives, and plaintiff "demonstrated
zero effort" to find employment in New Jersey.
Following argument, the motion judge rendered a terse oral decision
concerning the present issue, summarily finding plaintiff failed to meet some of
the Bisbing factors. In sum, the judge noted:
And to say that I should allow a relocation because
[plaintiff]'s got family in Chicago and [the children
would] be better protected there than here, and
[plaintiff] has a job in Chicago waiting for her, those
really are not good enough reasons under . . . Bisbing
for this [c]ourt to consider relocation without any
further indicia that it would be in the children's best
But, the judge ultimately refused to consider plaintiff's application
because the DCPP litigation – over which she also presided – was pending and
restricted defendant's contact with the children to supervised visitation. The
More importantly and more to the point, because
DCPP is involved, [defendant]'s contact . . . with the
children is currently restrained and supervised. Any
move would severely impact his contact with the
children and to the detriment, not of [defendant and
plaintiff], but these kids, because . . . [defendant] would
be restricted from having the supervises [sic] that he
has in place in the State of New Jersey, from
supervising the children there . . . . [H]is parents or
maybe just his mother also [is] authorized to supervise,
but they live in the State of Delaware.
This appeal followed.
On appeal, plaintiff argues the motion judge abused her discretion by
failing to conduct a best interests analysis in light of the pending DCPP matter,
and the judge improperly considered that factor because it is not expressly stated
in N.J.S.A. 9:2-4(c). Plaintiff seeks a plenary hearing to resolve the factual
disputes between the parties.
We recognize "the geographical proximity of the parents' homes" is one
factor to consider in the best interests analysis. N.J.S.A. 9:2-4(c). But, there is
no authority to support the judge's decision that this factor is wholly dispositive
of the best interests analysis, or defendant would be precluded from supervised
visitation with the children in Chicago, pending the outcome of the DCPP
litigation. Family courts in other states often assist our state in the enforcement
of custody orders. 2 We therefore discern no reason for the Family Part to delay
consideration of plaintiff's application until the DCPP matter has concluded.
The motion judge is fully familiar with the pending DCPP matter. Accordingly,
she can direct DCPP to determine the viability of its counterpart in Illinois to
assist with defendant's supervised visitation of the children in that state.
Turning to the need for a plenary hearing, it is beyond peradventure that
a testimonial hearing is necessary when a genuine issue exists as to a material
fact. "[A] plenary hearing is particularly important when the submissions show
there is a genuine and substantial factual dispute regarding the welfare of
children." K.A.F. v. D.L.M., 437 N.J. Super. 123, 138 (App. Div. 2014). A
court should not "make credibility determinations or resolve genuine factual
issues based on conflicting affidavits." Ibid. Failure to conduct such a hearing
is reversible error. Id. at 137-39.
Both New Jersey and Illinois have adopted the Uniform Child Custody
Jurisdiction and Enforcement Act. See N.J.S.A. 2A:34-53 to -64; 750 Ill. Comp.
Stat. 36/101 to -36/405. Relevant here, "[a] court of [Illinois] may utilize any
remedy available under [an]other law of [Illinois] to enforce a child-custody
determination made by a court of another state." 750 ILCS 36/303. And similar
to New Jersey, Illinois has established the Department of Children and Family
Services, which "perform[s] child custody investigations" and "supervise[s]
parents to assess whether or not the custody or visitation judgments rendered by
the court are being carried out." Ill. Admin. Code tit. 89, § 330.1.
Because the parties submitted diametrically opposed certifications, we
agree with plaintiff that a plenary hearing is necessary to resolve the disputes
between the parties. As one example, plaintiff claimed defendant failed to
exercise parenting time, while defendant alleged plaintiff consistently attempted
to interfere with his relationship with the children. Also, resolution of the best
interests factors will require credibility determinations that cannot be gleaned
from the certifications and supporting documents submitted by the parties .
In evaluating the best interests factors, the motion judge may consider the
insights of the parents of primary residence and alternate residence, "[t]he views
of other adults with close relationships with the child," and "other evidence,
including documentary evidence, interviews with the children at the court's
discretion, and expert testimony." Bisbing, 230 N.J. at 335; see also R. 5:8-6
("As part of the custody hearing, the court may on its own motion or at the
request of a litigant conduct an in camera interview with the child(ren).").
Plaintiff's remaining contention that the motion judge improperly
considered the pending DCPP matter lacks sufficient merit to warrant discussion
in our written opinion. R. 2:11-3(e)(1)(E). We simply note as stated above,
N.J.S.A. 9:2-4(c) expressly permits the Family Part to consider other factors
aside from those listed in the subsection, which the Court recognized in Bisbing.
230 N.J. at 335.
Reversed and remanded. We do not retain jurisdiction.