SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1666-16T4

ENGY ABDELKADER,

Plaintiff-Appellant,

v.

AHMED ISLAME HOSNY,

Defendant-Respondent.

_____________________________________

Submitted February 26, 2018 – Decided

Before Judges Messano, O'Connor, and Vernoia.

On appeal from Superior Court of New Jersey, 

Chancery Division, Family Part, Monmouth 

County, Docket No. FM-13-0390-11.

Einhorn, Harris, Ascher, Barbarito & Frost, 

PC, attorneys for appellant (Matheu D. Nunn, 

of counsel and on the briefs; Bonnie C. Frost, 

on the briefs).

Laufer, Dalena, Cadicina, Jensen & Bradley, 

LLC, attorneys for respondent (Michelle A. 

Benedek, of counsel and on the brief).

PER CURIAM

Plaintiff Engy Abdelkader and defendant Ahmed Islame Hosny 

were married in April 2009. Their son, A.H. (Alec), was born in 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." 

Although it is posted on the internet, this opinion is binding only on the 

parties in the case and its use in other cases is limited. R. 1:36-3.

July 26, 2018
2 A-1666-16T4

2010.1 Shortly thereafter, plaintiff left the marital home with 

Alec and moved in with her parents; divorce proceedings ensued.

The dual final judgment of divorce (JOD) entered on June 13, 

2011, incorporated a marital settlement agreement (MSA), which 

provided the parties would share joint legal custody of Alec, with 

plaintiff being designated the parent of primary residence (PPR). 

Aside from largely equally shared holidays and school breaks, the 

MSA provided defendant with parenting time every other weekend 

from Friday through Sunday evening, and one additional overnight 

visit with Alec per month on Thursdays. The MSA also permitted 

the exercise of additional parenting time by defendant in other 

circumstances upon notice.

The parties were required to consult with one another "on all 

matters of importance" concerning Alec's health, education, 

religious upbringing, and general welfare, and forbade either of 

them from making unilateral decisions on such matters except in 

the case of an emergency. Lastly, the MSA did not depart from the 

general requirements of N.J.S.A. 9:2-2, and forbade either parent 

from moving with Alec outside New Jersey without advanced written 

consent of the other or a court order approving the relocation. 

 

1 We use initials and a pseudonym to keep the child's identity 

confidential.
3 A-1666-16T4

Plaintiff continued to live with Alec and her parents but, 

in October 2015, having received an offer of employment at 

Georgetown University (GU), plaintiff filed a motion seeking to 

relocate with Alec to northern Virginia. Defendant opposed the 

request and cross-moved for a change in custody. The Family Part 

judge denied plaintiff's motion without prejudice and entered an 

order requiring the parties to participate in a custody neutral 

assessment by a court-appointed expert, permitting each to retain 

his or her own independent expert, and setting a discovery schedule 

in anticipation of a February 2016 plenary hearing. The judge 

permitted plaintiff to move with Alec to Virginia pending the 

hearing.

For reasons unnecessary to explain, delays ensued and the 

hearing did not commence until August 2016 and did not finish 

until September 20, 2016. The judge issued her written decision 

in October, concluding that pursuant to the standard for relocation 

motions announced in Baures v. Lewis, 167 N.J. 91 (2001), although 

plaintiff had a good faith reason for the move to Virginia, 

relocation would be inimical to Alec's interests. In her opinion 

and conforming order of November 16, 2016 (the November 2016 

order), the judge presented plaintiff with three options: (1) 

return to New Jersey with Alec, in which case plaintiff would 

remain the PPR and there would be no "custody hearing because 
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there [was no] substantial change in circumstances"; (2) return 

to New Jersey with Alec but commute to work at GU, which would 

possibly require a limited custody hearing so the court might 

determine if "there ha[d] been a substantial change in 

circumstances"; or (3) remain in Virginia, but defendant would be 

designated PPR. The order further provided a parenting time 

schedule for plaintiff if she chose the third option.2

At a case management conference on December 19, 2016, the 

parties executed a consent order (the consent order), in which 

plaintiff memorialized her election to remain in Virginia. The 

balance of the consent order reflects the parties' agreement on 

other parenting time issues and other items affecting Alec's 

welfare. Plaintiff then filed this appeal.

Before us, plaintiff contended the judge failed to make 

sufficient findings based upon substantial credible evidence that 

 

2 On September 1, 2017, after all briefs were filed, the judge

submitted a letter, ostensibly pursuant to Rule 2:5-1(b), 

supplementing her lengthy written opinion. Plaintiff objected and 

urged us not to consider the submission. We agree with plaintiff 

that the purpose of the Rule is permit a judge to amplify "a prior 

statement, opinion or memorandum made either in writing or orally 

and recorded." Ibid. Its intent is not to permit the judge to 

respond to arguments made by counsel on appeal. See also State 

ex rel. N.P., 453 N.J. Super. 480, 489 n.4 (App. Div. 2018) 

(recognizing impropriety of trial judge's opposition to motion for 

leave to appeal filed under the rubric of somewhat analogous Rule

2:5-6(c)).
5 A-1666-16T4

relocation was inimical to Alec's interest and imposed a new burden 

upon a relocating parent to demonstrate that the child's 

relationship with the non-relocating parent would actually 

improve. Plaintiff also argued the judge prejudicially relied 

upon the opinion of defendant's expert rather than the neutral, 

court-appointed evaluator who favored plaintiff's relocation.3

After the appellate briefs were filed, defendant moved to 

supplement the record and dismiss the appeal. In particular, 

defendant submitted evidence that plaintiff was no longer on the 

 

3 After the parties filed their appellate briefs, the Supreme Court 

issued its opinion in Bisbing v. Bisbing, 230 N.J. 309 (2017), in 

which the Court "depart[ed] from the two-part test that Baures

prescribed for a relocation application brought by a parent of 

primary residence," and held 

[i]n all such disputes, the trial court should 

decide whether there is "cause" under N.J.S.A. 

9:2-2 to authorize a child's relocation out 

of state by weighing the factors set forth in 

N.J.S.A. 9:2-4, and other relevant 

considerations, and determining whether the 

relocation is in the child's best interests.

[Id. at 312-13.] 

We requested the parties submit briefs addressing whether we should 

apply Bisbing's new standard to our consideration of the points 

raised on appeal. Plaintiff argued the new standard should apply; 

defendant urged otherwise. In particular, defendant noted that 

plaintiff specifically argued before the Family Part judge that 

the Baures standard applied. The judge obviously agreed and 

considered the hearing evidence in light of that standard. That 

alone sufficiently convinces us that we should not address whether 

Bisbing applies to matters tried and decided prior to the Court's 

decision.
6 A-1666-16T4

faculty at GU and was listed as a member of the faculty at Rutgers 

University. He argued the appeal was moot.

Although plaintiff opposed the motion, she filed a 

certification acknowledging that she was no longer employed by GU 

and was searching for other employment in the Washington, D.C. 

area. Plaintiff acknowledged she was now living in New Jersey 

with her parents and teaching as an adjunct professor at Rutgers. 

She emphasized that because life in academia would likely require 

her to pursue available job offers in other states, future 

relocation "remain[ed] a very real issue." Plaintiff also argued 

the appeal was not moot because the order denying relocation 

effectively awarded defendant day-to-day custody of Alec. A panel 

of our colleagues denied defendant's motion to supplement the 

record and dismiss the appeal.

We face a quandary in the sense that although plaintiff's 

notice of appeal seeks review of both the November 2016 order and 

the consent order, the essence of the appeal — whether the judge 

erroneously denied plaintiff's relocation motion — is undoubtedly 

moot. Whether Alec may accompany plaintiff if she were to relocate 

in the future to follow her academic career is entirely 

speculative, and it is well recognized that appellate courts "will 

not render advisory opinions or function in the abstract." In re 

Camden County, 170 N.J. 439, 449 (2002).
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More importantly, while a consequence of the November 2016 

order was that plaintiff undoubtedly faced a "Hobson's choice" and 

lost her status as PPR by choosing to remain in Virginia, plaintiff 

is no longer living outside New Jersey. Even if she were to 

prevail on appeal, i.e., we reverse the judge's November 2016 

order, plaintiff would not have the unilateral right to relocate 

with Alec to another state.

In Holder v. Polanski, 111 N.J. 344, 347-48 (1988), a preBaures decision, the plaintiff-mother who had physical custody of 

the children, sought the court's approval pendente lite to relocate 

with them to Connecticut over the defendant-father's objection. 

The judge initially awarded plaintiff primary custody of the 

children in the final judgment of divorce but denied her request

for relocation. Id. at 348. When she nonetheless moved to 

Connecticut, and pursuant to her motion to grant the defendant 

physical custody, the judge awarded the defendant "'residential 

custody'" of the children and "visitation rights" to the plaintiff. 

Id. at 348-49.

The Court concluded the trial court and Appellate Division

had applied the wrong standard to consideration of the plaintiff's 

relocation request. Id. at 351-54. The Court determined that the 

plaintiff should have been permitted to relocate with the children, 

id. at 354, but said:
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We recognize, however, that in this as in many 

custody cases, we are confronted with a living 

record. Accordingly, a remand is necessary 

to reconsider the best interests of the 

children. In remanding, we acknowledge that 

[the defendant] has had "residential custody" 

of the children for the past two years. 

Although [the plaintiff] should have been 

permitted to move to Connecticut in 1986, the 

issue on remand will not be, as it was then, 

whether she should move to that state, but 

what custodial arrangement is in the best 

interests of the children at the present time.

[Ibid.]

In this case, the same result would inure even if we were to 

conclude that the Family Part judge should have granted plaintiff's 

relocation request first made in 2015. As a result, we dismiss 

the appeal as moot.

Nonetheless, the whirlwind of changed circumstances that have 

occurred in Alec's young life since 2015 force us to conclude that 

a remand to the Family Part is necessary to determine what 

custodial arrangement is currently in Alec's best interests. See

Faucett v. Vasquez, 411 N.J. Super. 108, 134 (App. Div. 2009) 

(holding that remand for a plenary hearing on custody was necessary 

based upon sufficient showing of changed circumstances solely 

because of impending year-long military deployment of the parent 

of primary residence).

Here, Alec was residing pendente lite with plaintiff in 

Virginia for nearly one year before the November 2016 order. He 
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has resided with defendant in New Jersey for eighteen months since, 

although plaintiff has moved back to New Jersey for a portion of 

that time, the consequences of which are undisclosed on this 

record. In short, there are sufficient changes in the 

circumstances of this child's life to warrant a plenary hearing 

at which the judge shall determine what custodial arrangement now 

serves Alec's best interests. N.J.S.A. 9:2-4.

The appeal is dismissed; the matter is remanded to the Family 

Part. Although plaintiff sought transfer of the matter to a 

different judge, that is unnecessary because the judge who 

considered the evidence and entered the November 2016 and consent 

order has been transferred to another division. Given the start 

of another school year in a few months, the remand hearing shall 

take place as quickly as possible.

We do not retain jurisdiction.