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When a New Jersey appeals court ruled last year that an in-state move by a custodial parent could warrant a rewrite of the custody pact, matrimonial lawyers predicted that they would have a tough time taking advantage of the decision. The aftermath suggests the lawyers were right. Last week, a Middlesex County judge denied an application by Robert Schulze, of Metuchen, N.J., to obtain custody of his 11-year-old son Robert on grounds that his ex-wife’s unilateral move to Vernon, N.J., was detrimental to the boy. Schulze was able to re-open the custody issue because the appeals court had ruled that a residential custodial parent’s intrastate relocation of a child could constitute a substantial change of circumstances warranting a modification of a custodial or parenting-time arrangement. Until the ruling, in Schulze v. Morris, 361 N.J. Super. 419 (2003), only out-of-state moves were considered substantial changes of circumstance. The appeals judges gave Schulze an opportunity to prove that his request met the 12 tests required for parents seeking a change of custody under Baures v. Lewis, 167 N.J. 91 (2001), starting with the requirement that there be a good-faith reason for the move. Schulze’s lawyer, John Paone, of Woodbridge, N.J.’s Paone & Zaleski, argued that the move by Schulze’s ex-wife, Lisa Morris, from Middlesex County to Vernon, 74 miles and two-and-a-half hours away, round trip, was made for contrived reasons and that the distance prevents Schulze from carrying out the parenting agreement that gives him five overnights every 14 days. Paone presented evidence that the Metuchen schools were better, that Bobby told his therapist he wanted the father to have custody and that the move to Vernon would result in further alienation of the child from his father. He further adduced evidence that Schulze, a trauma surgeon, has tried to find work close to Vernon but there are no such jobs for him in Sussex, N.J., while Morris has made no attempt to relocate back to Middlesex County. The evidence didn’t sway Superior Court Judge David Rosenberg. He agreed with defense counsel Peter Laemers, of Newton, N.J.’s Morris, Downing & Sherred, that the expert testimony about the difference in the schools wasn’t persuasive. The judge said Bobby wasn’t old enough to decide what was best for him. He said Bobby had more recreational opportunities in Vernon. And he said the distance wasn’t an insurmountable obstacle that required a change in custody, particularly if the parents split the driving. The judge did grant Schulze additional parenting time — he now could have three weekends a month — but Paone says Schulze can’t use the extra time granted because he is often on call. “It’s a loss in our eyes in the sense that we thought this was going to be the case that was going to do what the Appellate Division said might very well happen,” Paone says. KEEPING DISTANCES IN PERSPECTIVE “If Dr. Schulze can’t win a Schulze hearing, who can?” Paone wonders. He and Laemers say they know of no other cases in which a noncustodial parent has been able to take advantage of the Appellate Division ruling in Schulze. Last year, matrimonial attorneys speculated that the main effect of the decision would be to put lawyers on notice to make the possibility of intrastate moves a subject of negotiations over custody. Laemers says Rosenberg’s ruling shows that negotiators will have difficulty trying to block a custodial parent’s relocation. Judges will be reluctant to concede that a custody issue arises “every time you have a house sale,” he says. “Look, if you move away an hour or an hour and a half it’s something that is going to happen in many cases, and it’s not a basis to change custody,” he says. He says the most family lawyers believe judges will re-think custody if the child is moved into an area that provides a demonstrably worse standard of life or school or if the geographic distance is clearly large. “In this case we’re not talking about Sussex to Cape May, we’re talking about Middlesex to Sussex,” he says. “The appellate division insinuated if you’re talking about Cape May, you’ve got an issue, but if you’re talking about this kind of distance you can accommodate.” Mark Biel of Atlantic City, N.J’s Mairone, Biel, Zlotnick & Feinberg says it doesn’t make sense that a 15-minute move from Cherry Hill, N.J., to Philadelphia automatically entitles a noncustodial parent to a Baures hearing but a move from Cherry Hill to Sussex County doesn’t. But Biel suggests that winning Schulze hearings will be difficult for noncustodial parents because courts are already liberal about allowing out-of-state moves. The first test in Baures, for example, whether the decision to move is made in good faith, is a standard relatively easy to achieve, he says. What’s more, Baures doesn’t require proof that the move will be in the child’s best interests, it requires a showing the move will not be “inimical” to the child. “With, say, a father who has children on alternating weekends, that’s a pretty easy standard for the woman to show,” he says. All that’s needed is an adjustment like Rosenberg made in Schulze, to increase holiday and summer visits. “Since the courts have liberalized the ability of the primary parent to relocate out of the state it follows fairly logically that the liberal policy would be pervasive in intrastate location cases as well,” Biel says.

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