Holder v. Polanski
111 N.J. 344, 544 A.2d 852 (1988)
- Virginia and Ben were married and had two children. Then they got a divorce.
- Virginia was awarded physical custody of the children, and Ben got visitation rights.
- Virginia requested that she be allowed to move from New Jersey to Connecticut.
- Virginia argued that she would be closer to her parents and would have more opportunities in Connecticut, and that would be in the children’s best interests.
- Ben opposed the move, arguing that it would make it harder for him to visit the children.
- The Trial Court denied Virginia permission to move. She appealed.
- The Trial Court found that Virginia had showed there was benefit to moving to Connecticut.
- However, she did not show that those same benefits (job opportunities, school) were not also available in New Jersey.
- Aka the real advantage test, which says, there has to be something there that you can’t get here.
- Btw, while the appeal was pending, Virginia moved to Connecticut and left the children with Ben in New Jersey. She applied for and was granted a motion to give physical custody to Ben.
- The Appellate Court affirmed.
- The New Jersey Supreme Court reversed and remanded.
- The New Jersey Supreme Court found that historically, the rule was that when a custodial parent wants to move to another State, they must establish a ‘real advantage’ to that parent from the move, and that the move was not inimical to the best interests of the children.
- The Court modified the common-law and now found that a custodial parent may move with the children to another State as long as the move does not interfere with the best interests of the children or the visitation rights of the non-custodial parent and there is a sincere, good-faith reason for the move.
- You can’t move just to keep the kids away from the other parent.
- The Court agreed that Virginia should have been allowed to move with the children to Connecticut, but now that they’ve been living with Ben for the last two years (during all the litigation), the case needed to be remanded to make a best interests determination as to whether the kids should stay were they are now settled, or moved to their mother’s house in Connecticut.