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.