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Six months after an appeals court ruled that divorced parents’ intrastate moves might warrant a rewrite of custody and parenting agreements, some lawyers are failing to raise the issue in divorce negotiations. When they don’t, their adversaries might not clue them in, according to lawyers familiar with the issue. And a Middlesex County, N.J., trial judge’s Dec. 6 ruling — in a follow-up proceeding in the case that made the new law — shows that lengthy litigation can ensue when the question of intrastate moves is not spelled out in the divorce settlement. In Schulze v. Morris, a three-judge court ruled in June that a residential custodial parent’s intrastate relocation of a child could constitute a substantial change of circumstances warranting modification of a custodial or parenting-time arrangement. Previously, only out-of-state moves were considered substantial changes of circumstance. Plaintiff Robert Schulze, a Metuchen, N.J., doctor who practices in Brooklyn, sought to compel his ex-wife, Lisa Morris, to move with their son, now 10, from Vernon Township in Sussex County back to Middlesex County, where they had lived before their 1998 divorce and for two years afterward. The appeals court declined to order the relocation. But it did say in dicta that a noncustodial or secondary residential parent who believes that an intrastate move would be deleterious to the relationship with the child or inimical to the child’s best interests could seek a change in the custody agreement. Judges and practitioners applauded the ruling after years of lamenting that a custodial parent needed a court’s permission to move a couple of miles from, say, Mahwah to Suffern but could move without challenge to Cape May. “It has settled the question as to whether consent is needed to have an intrastate move,” says Cary Cheifetz, of Summit’s Ceconi & Cheifetz. “It makes sense that if somebody moves from one side of the state to another it can change or modify the parenting time schedule but nobody thought that this meant, wait a minute, you get a new shake regarding custody,” says Schulze’s attorney, John Paone, of Woodbridge’s Paone & Zaleski. “You can’t say you are going to give me all the parenting time and then tomorrow you move to Atlantic City,” he says. Paone is getting a chance to put the Appellate Division ruling to work for Schulze. He convinced Middlesex County Superior Court Judge David Rosenberg on Dec. 6 to allow Schulze to present evidence that he should obtain custody because his ex-wife’s move to Sussex County nullified the arrangements in the divorce settlement. “All it means is that Schulze is going to get a Schulze hearing,” Paone says. Since the appellate ruling, smart matrimonial lawyers — particularly those who represent noncustodians or secondary residential custodians — have been insisting on settlement provisions that limit the former spouse’s intrastate moves. “We put in the agreement that custodial parents can move so many miles from their town,” says Jennifer Fortunato, of counsel to Denville’s Einhorn, Harris, Ascher, Barbarito, Frost & Ironson. Even after Schulze, she says, “there are attorneys who think a custodial parent can go anywhere they want in the state. I’m surprised a lot of people don’t know about the decision.” When Fortunato represents a custodial parent and the adversary doesn’t insist on a geographical limit on intrastate moves, “I never say anything,” she says. Robert Corcoran, who heads a family law firm in Hackensack, says Schulze is a solid decision. He says he had tried to get judges to re-open custody and parenting agreements after intrastate moves before Schulze and “basically they said it’s not a relocation case.” Now, by putting a distance limit in the parenting agreement, “I have my prima facie case already made” if the custodial parent moves beyond the limit, Corcoran says. And if the lawyer for an opposing noncustodian parent doesn’t raise the issue during the settlement negotiations, does Corcoran? “Absolutely, not,” he says. On the other hand, Paone and his adversary in the Schulze case, Peter Laemers, a partner in Newton’s Morris, Downing & Sherred, suggest it’s probably a good idea for both sides to raise the issues created by Schulze during a settlement negotiation. “I think you need to deal with it and you should deal with it,” Laemers says. And Paone says, “I think it works to both parties’ interests. I want to know I can move from Sussex County to Monmouth County without having to go back to court.” The portion of the Schulze case that is now before Judge Rosenberg appears to be just what the appeals court envisioned when it allowed litigation over whether an intrastate move constituted a changed circumstance. Schulze argues that his former wife’s move to a home 74 miles and more than 2 1/2 hours away effectively nullifies a joint custody agreement that gives him lengthy periods of time with his son each week. Paone says the agreement gave Schulze custody from Friday through Monday on alternate weeks and Tuesday and Wednesday every week, which posed no problem when everyone was living in Middlesex County. Schulze could take his son to school on the mornings he had custody. Since the move, Schulze has kept the alternate weekends, but has lost the Monday, Tuesday and Wednesday visits, Paone says. Now that the custody agreement is up for review, by Rosenberg’s order, Paone also is preparing evidence that the educational and recreational opportunities available to the son in Vernon Township aren’t as good as they are in Metuchen. In a certification, Morris said the charges of diminished opportunities were false and she suggested the problems with Schulze’s parenting time have been caused by his career choices, not the distance between Metuchen and Vernon Township. “Plaintiff has chosen a career path that apparently is not as flexible as he likes, however, he has made his choice and selected that career,” Morris said. Laemers says he is considering an interlocutory appeal of Rosenberg’s decision to hold the plenary hearing. He argues that a trial judge rejected Schulze’s plea for an order requiring Morris to move back to Middlesex and that an appeals court upheld that decision. Schulze shouldn’t be allowed to use the appeals court’s language on intrastate moves as a wedge to re-open his case, Laemers says. Rosenberg had awarded his client $3,000 in pendente lite fees, but that isn’t much considering the broad claims before Rosenberg, Laemers says.

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