Denial of relocation absent any testimony or findings reversed: Superior Court of New Jersey

Erica Vitolo appealed from the August 15, 2014 order denying her application to relocate from New Jersey to Florida with the parties' three-year-old son. Vitolo v. Sabba, No. A-0195-14T2 (March 16, 2016).[1]

Post separation and the birth of a child, William A. Sabba, Jr., filed for custody and parenting time, while Erica sought custody, child support, medical coverage, and a paternity test, which confirmed William’s parentage.

On March 21, 2014, the Family Part issued a temporary order, granting the parties joint legal custody with Erica as the parent of primary residence, while William was granted parenting time. On a further appeal by Erica for relocation to Florida, the Family Part judge took no testimony, made no findings, and did not issue a written or oral decision; rather issued a two-sentence order, denying Erica's request to relocate as "premature" and granted an increase in William's parenting time to eight hours per week. A further motion for reconsideration was also denied.

The Superior Court of New Jersey, Appellate Division determined that Erica's application was a removal motion, as such was by a custodial parent to move away in a case in which the noncustodial parent would see the child for eight hours per week. The first step of the removal test considered the type of parenting arrangement between the parties and whether the matter was actually an application for a change in custody as opposed to a removal case. (citing Morgan v. Morgan, 205 N.J. 50, 64 (2011)).  Post the determination, the burden of production rests initially on the movant to make out a prima facie showing on the good faith and harm to the child prongs, which typically requires a ‘visitation proposal.’" Id. at 65-66 (quoting Baures v. Lewis, 167 N.J. 91, 118 (2001)).

Consequently, the trial court shall assess the movant on 12 factors to be able to determine that a prima facie case was made, such as: (1) reasons for the move; (2) reasons for the opposition; (3) past history of dealings between the parties insofar as it bears on the reasons advanced by both parties for supporting and opposing the move; (4) likelihood of the child’s access to educational, health and leisure opportunities at least equal to what’s already available; (5) any special needs or talents of the child that require accommodation and availability of such accommodation or its equivalent in the new location; (6) developing a visitation and communication schedule to allow the noncustodial parent to maintain a full and continuous relationship with the child; (7) likelihood of the custodial parent’s continuity to foster the child's relationship with the noncustodial parent if the move is allowed; (8) effect of the move on extended family relationships here and in the new location; (9) child’s preferences concerning his or her age; (10) whether the child is entering his or her senior year in high school at which point he or she should generally not be moved until graduation without his or her consent; (11) noncustodial parent’s ability to relocate; (12) any other factor bearing on the child's interest. (Baures, supra, 167 N.J. at 116-17).

Once these factors are met, the burden shifts on William to produce evidence opposing the move as either not in good faith or inimical to the child's interest; following which Erica may rest or produce additional evidence regarding her motives.

The Superior court thus reversed and remanded. To avoid further delay, the remand judge would schedule a conference within 30 days of the opinion, and complete the remand hearing within 60 days of the conference.


Leave a Reply