Introduction
In November 2024, the New Jersey Appellate Division addressed the legal standards and considerations when determining custody, parenting time, and relocation of a child(ren) from New Jersey to a different state in K.K v. L.K. (A-3046-23).
Following a five (5) day trial the court awarded the parties joint legal custody, granted the Defendant (mother) primary residential custody of the parties’ children, and, allowed them to remain in the State of California. The Plaintiff (father) was designated as the parent of the alternate residence in New Jersey. The Plaintiff appealed the trial court’s decision regarding custody. The Appellate Division affirmed and agreed with the trial court’s decision granting primary residential
custody of the parties’ children to the Defendant, allowing them to remain in
California. Background
The parties were married for about four years, sharing two children, one born in California and one in New Jersey. During the marriage, the couple resided in New Jersey but experienced multiple separations and reconciliations leading to the Defendant bringing the children to California where she had family and friends. Throughout the then pending divorce proceedings, the Plaintiff continued to reside in New Jersey, with his girlfriend and the two children born in their relationship. The Defendant continued to reside in California with the parties’ two children.
During the divorce proceedings, the parties had multiple discussions and orders were entered pertaining to custody. Ultimately following trial, the court awarded the parties joint legal custody and addressed physical custody by assessing the evidence and each of the fourteen factors set forth in the applicable statute (N.J.S.A. 9:2-4(c)) including whether it was in the children’s best interests to permanently remain in California with the Defendant. The Court ruled that the Defendant was the primary residential custodial parent and allowed the children to remain in California with her.
Court’s Analysis
The Appellate Division allowed the children to remain in California, and held that the trial court did not err in its’ determination and properly considered each of the fourteen factors in the statute, the best interests of the children, and the Supreme Court decisions of Bisbing v. Bisbing, 230 N.J. 309 (2017) and Pascale v. Pascale, 140 N.J. 583 (1995).
The Appellate Division explained that the plain language of the statute showed that the Legislature intended that both parents have the equal right to seek custody of their children, which the court has the discretion to order in the form of joint, sole or any other form that is in the best interests of the children. It noted that “frequent and continued contact with both parents” (N.J.S.A. 9:2-4) does not mean the parties should have a fifty-fifty parenting schedule in New Jersey as urged by Plaintiff.
The Appellate Court quoted Pascale to emphasize that both legal and physical custody create responsibility over children and noted “the primary caretaker has the greater physical and emotional role” and that the secondary caretaker has an equally important role that is exercised by a befitting schedule given the circumstances of the case.
The Possibilities of Joint Physical Custody
N.J.S.A. 9:2-4 states it is New Jersey’s “public policy . . . to assure minor children of frequent and continuing contact with both parents”; however, joint physical custody is “rare” (Pascale, 140 N.J. at 597,) as it means that children would live with both parents on a rotating frequent basis. In cases across state lines, it is even more unlikely that joint physical custody will be awarded since it can be destabilizing, and unfeasible for divorced or separated parents living in different states.
Residency of Children During Divorce Proceedings
In this case, the children being permitted to remain in California during the pendency of the case had no effect on the outcome of the case as rotating coast-to-coast residency was common during the marriage. However, the children’s daily activities, medical practioners, school, family, and friends being in California heavily weighed on the trial court judge’s decision in awarding Defendant primary residential custody.
Frequent and Continuing Contact
In K.K v. L.K., the Appellate Division highlighted that:
“The plain language of the statute [N.J.S.A. 9:2-4.] shows the Legislature intended that both parents have the equal right to seek custody of their children, which the court has the discretion to order in the form of joint, sole, or in any other form that is in the best interests of the children”
The Court makes it clear that both parents’ rights need to be equal subject to N.J.S.A. 9:2-4 but that statute does not necessitate fifty-fifty physical custody, as fifty-fifty parenting time is not automatic and is determined on a case by case and is fact sensitive basis. Although both parents’ having the equal right to seek custody the best interests of the children can be accomplished without a fifty-fifty custody arrangement.
Frequent and continuing contact with the parent of alternate residence can be accomplished, as illustrated in this case, where the trial judge awarded lengthy summer parenting time and other parenting time throughout the year, as well as daily video, and electronic contact to that parent.
Conclusion
The process of getting a divorce can be daunting, especially when adding in child custody disputes and issues that can arise when a parent is desirous of relocating to another state. Knowing what you want and what is best for your children and future is the first step prevailing in your family law case. Our family law attorneys at Aronsohn Weiner Salerno and Kaufman, P.C. will empathetically listen, understand your situation, and advise you as to your options in each step of the process. Our firm has over 40 years of family law experience with a team of litigators ready to represent you and your family law matter.
If you are filing, considering filing, or have ongoing custody issues, call Aronsohn Weiner Salerno & Kaufman, P.C. today at (201) 487-4747.