Case Update (15 February 2024): CDVD v. BKT; trial judge did not abuse discretion in denying Mother’s request to relocate child to Portugal

A non-binding, non-precedential opinion of the Superior Court of NJ - Appellate Division, affirmed a trial judge’s determination that the Plaintiff Mother’s request to relocate her child to Portugal was not in the child’s best interest. Plaintiff Mother was born in Portugal, and had moved every few years for her father’s job. She maintains dual Portuguese and U.S. citizenship, as does the child. She met the Defendant Father, an American, in 2010 in London where they were both living and working at the time. On May 25, 2015, the parties entered a prenuptial agreement and were then married in Portugal three days later. Plaintiff contends that, prior to their marriage, the couple had agreed to move to the U.S. for 10 years and then return to Portugal to reside. Their child was born in NJ and has lived his entire life in NJ. On May 12, 2020, the Plaintiff filed a complaint for divorce in NJ, and requested permission to relocate the child to Portugal. In fact, on June 26, 2022, Plaintiff relocated to Portugal herself, and travels back and forth to NJ to exercise parenting time with the child. She speaks exclusively to the child in Portuguese. She asserted that she was required to relocate to Portugal to salvage her business, a company she co-founded called the Canopy Group, which had been unsuccessful in the United states and was losing its financial backer, short of a repositioning in Europe to better service their European clients. Both parents had psychological experts testify at trial. The experts disagreed as to whether the child should relocate, or not. The Defendant Father had his employer testify that his job security was premised on him remaining in the United States. One of the experts noted that the child had delayed language development. The other expert testified about the inflexibility of both parents.

After examining the NJ statutory best interest factors, the judge concluded that the child should not relocate to Portugal, and that the benefits of the child relocating “do not come close to outweighing the substantial and irreparable harm that would result to his relationship with [defendant] as a consequence of his relocating to a country over 3,000 miles away.” The defendant was designated as the primary residential parent, and the judge awarded plaintiff parenting time of up to 2 non-consecutive weeks anytime within 25-miles of the defendant, 8 weeks in the summer in Portugal, and certain other time.

On appeal, the Appellate Division noted that the trial judge had examined the statutory factors, as required, in a parental relocation case. The judge, when exploring the statutory best interest factors, identified steps to expose the child to a Portuguese community in the United States, to ensure he was immersed in his cultural heritage while here. The judge further noted that exposing the child to Portuguese language and culture “do not take priority over the relationship [of the child] with his [f]ather.” The judge looked at the experts’ opinions on how the parents failed to demonstrate an ability to parent the child jointly and were unable to resolve conflicts. The judge noted the experts’ opinions that the child was bonded with both parents, “but has a stronger attachment to plaintiff” and was “‘resistant to instructions’ from both parents.” Ultimately, after examining all the factors de novo, the Appellate Division noted that “the judge did not make an erroneous decision in denying [the mother’s] request to relocate to Portugal with [the child].”

As a side note, international family relocation is one of the most complicated areas of practice. Each jurisdiction provides its own standard for courts to examine whether to permit a parent to relocate their child, including overseas. In 2010, the Hague Conference on Private International Law and the International Centre for Missing and Exploited Children hosted a meeting in Washington, D.C. that resulted in a non-binding set of guidelines for judges in international family relocation cases called “The Washington Declaration.” As one can see from the legal standard in NJ, courts will routinely be mandated to make decisions based on a review of their statutory best interest factors (also used in determining non-relocation custody cases), which often gives the trial judge great authority to make a decision based on their views of the evidence. As stated by the Appellate Division, in this case, “[t]he conclusions of Family Part judges regarding child custody ‘are entitled to great weight and will not be lightly disturbed on appeal’” and “we will only disturb the Family Part’s factual findings if ‘they are ‘so wholly insupportable as to result in a denial of justice.’’” The Appellate Division was looking at whether the trial judge abused their discretion in making a decision, which occurs when that decision “rested on an impermissible basis, considered irrelevant or inappropriate factors, failed to consider controlling legal principles or made findings inconsistent with or unsupported by competent evidence.” Needless to say, once a decision regarding a child’s relocation is made, that decision is difficult to overturn on appeal.