Transfer of Custody as a Sanction Not Permitted Without Best Interest Analysis Under N.J.S.A. 9:2-4

By:  Thomas A. Grossi, Esq.

In a recent published decision, A.J. v. R.J., the Appellate Division reversed and remanded the trial court’s ruling that awarded a transfer of custody as a sanction without a best interest analysis.  The trial court does have the authority to transfer custody as a sanction against a party, but it cannot do so without holding a best interests hearing or warning to the offending party that custody would be modified.

The parties Judgment of Divorce incorporated a marital settlement that designated plaintiff the parent of primary residence and defendant parent of alternate residence with defendant having parenting time every other weekend and one midweek overnight.  In March 2018, plaintiff moved from Elizabeth, New Jersey to Mount Holly – approximately 62.3 miles away.  Defendant filed an order to show cause to bar the relocation and modify custody.    The court granted defendant temporary parenting time three weekends each month, ordered mediation, and scheduled a plenary hearing to determine whether plaintiff would be permitted to move.  Mediation failed and a plenary hearing was held.  The trial court ordered plaintiff’s return to Elizabeth and directed the parties to abide by the parenting time terms contained in their MSA. When Plaintiff did not return, Defendant filed another order to show cause wherein the trial court awarded custody to defendant as a sanction, triggering the appeal.

In over-turning the trial court’s ruling, the Appellate Division held that while there is no question the trial judge had authority to transfer custody to defendant as a sanction for plaintiff’s failure to comply with the July order mandating she return the children, the judge could not do so without holding a best interest hearing.  Since the trial judge did not consider the best interest factors under N.J.S.A. 9:2-4 during a plenary hearing, an award transferring custody could not be properly made.

If you have questions regarding custody or relocation, contact our offices for a consultation at 732-631-8315.


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