NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0468-17T3

JASON DEVER,

Plaintiff-Appellant,

v.

DEBRA HOWELL, a/k/a 

DEBRA A. HOWELL,

Defendant-Respondent.

_______________________________

Submitted September 12, 2018 – Decided 

Before Judges Messano, Fasciale and 

Gooden Brown.

On appeal from Superior Court of New Jersey, 

Chancery Division, Family Part, Cape May County, 

Docket No. FD-05-0386-11.

Richard A. Renza, Jr., attorney for appellant.

Anthony J. Harvatt II, attorney for respondent.

The opinion of the court was delivered by

FASCIALE, J.A.D.

Plaintiff appeals from an August 15, 2017 order entered after a bench 

trial requiring that he return the parties' children to New Jersey from South 

APPROVED FOR PUBLICATION

September 20, 2018

APPELLATE DIVISION

September 20, 2018
A-0468-17T3 2

Carolina. Judge James H. Pickering, Jr. conducted the trial, entered the order,

and rendered a sixty-six page written decision. He concluded that plaintiff 

unlawfully removed the children from New Jersey without first complying 

with N.J.S.A. 9:2-2. 

Plaintiff gave defendant less than one day's notice about the move, and 

although defendant objected, plaintiff moved to South Carolina without first 

obtaining an order permitting the relocation. Defendant filed an order to show 

cause (OTSC) seeking custody and the return of the children to New Jersey. 

The judge found plaintiff knew the statute required that he obtain an order 

permitting the removal before relocating to South Carolina, but he removed the 

children anyway, because he feared the court might grant defendant's pending 

motion for overnight visits with the children. After losing the trial, plaintiff 

sought reconsideration of the order under review, and for the first time,

requested a best interests analysis. 

We hold – because defendant had objected to the South Carolina move –

that N.J.S.A. 9:2-2 required plaintiff to first obtain an order permitting the 

removal of the children from this jurisdiction before the actual relocation. The 

time for the judge to determine whether plaintiff had established "cause" for 

the removal of the children would have been before the relocation occurred. 

Requiring the judge to analyze whether "cause" existed after the relocation
A-0468-17T3 3

ignores the unambiguous plain text of the statute, plaintiff's ultimate burden of 

proof to demonstrate "cause" before the move occurs, and the important 

Legislative purpose for requiring a showing of cause – that is, to preserve the 

rights of a noncustodial parent to maintain and develop her familial 

relationship. 

We therefore affirm. Our affirmance is without prejudice, however, to 

plaintiff seeking an appropriate order under N.J.S.A. 9:2-2 should he decide to 

do so. 

I.

The parties were never married. They had two children together, born in 

2007 and 2009. In approximately 2011, they agreed to joint physical custody 

of the children, and for eighteen months, they shared parenting time. In 

October 2013, plaintiff became the parent of primary residence. At all relevant 

times, they shared legal custody. 

Initially, plaintiff developed an interest in relocating with the children to 

Florida. On May 1, 2015, the parties entered into a limited consent order (the 

May 2015 order) permitting plaintiff to relocate with the children from New 

Jersey to Florida. The May 2015 order – which mentioned Florida seven times 

and omits any reference to South Carolina – contemplated defendant's 
A-0468-17T3 4

parenting time before and after the expected move to Florida. Plaintiff never 

relocated to Florida.

In November 2015, while the children remained in New Jersey, 

defendant filed a motion seeking overnight parenting time with the children. 

The motion had been initially returnable in February 2016, but the parties 

asked the judge to adjourn that date so they could negotiate. The judge carried 

the return date to March 2016, but plaintiff requested the judge relist argument

for April 7, 2016.

While the motion was pending, at 8:37 p.m. on Sunday, April 3, 2016, 

plaintiff told defendant he and the children would be moving to South Carolina 

the next day, and he offered her ten minutes in the morning to say goodbye. 

Although defendant adamantly objected, plaintiff relocated with the children to 

South Carolina on the morning of April 4, 2016, without obtaining an order 

permitting the move. 

On the April 7 return date, a motion judge (the motion judge) – not the 

judge who entered the order under review – conducted oral argument on 

defendant's motion for overnight parenting time. The motion judge learned for 

the first time that plaintiff had taken the children to South Carolina three days 

earlier, and informed plaintiff's counsel that the May 2015 order did not 

authorize the move to South Carolina. In response, plaintiff's counsel 
A-0468-17T3 5

presented a proposed consent order, signed only by plaintiff, the purpose of 

which was to permit the move, albeit after the fact. Defendant repeated her 

strong objection and refused to sign the proposed order. 

Also on the April 7 return date, the motion judge, as an interim measure 

to deal with the new information she had just learned, temporarily allowed the 

children to remain in South Carolina "until further order" of the court. As part 

of that order, she did not perform – nor was she asked to do so – a best 

interests analysis or otherwise determine, in accordance with N.J.S.A. 9:2-2, 

whether "cause" existed for plaintiff to remove the children from New Jersey. 

The motion judge made no findings of fact or conclusions of law as to 

plaintiff's decision to relocate to South Carolina. Importantly, the motion 

judge stated that she allowed the removal only on a temporary basis and that 

the relocation "procedurally may have been defective." 

The children remained in South Carolina for approximately two months. 

In June, plaintiff and the children returned to New Jersey, but again on July 28, 

2016 – without obtaining defendant's consent or a court order – plaintiff 

returned to South Carolina with the children. Defendant then retained counsel 

to petition the court for relief. 

In September 2016, defendant filed her OTSC. With counsel's 

assistance, defendant requested the court do two things: (1) require plaintiff 
A-0468-17T3 6

return the children to New Jersey, and (2) award her sole custody. By this 

time, she did not know where in South Carolina the children resided, or have 

any other basic information about the children. 

On the initial return of the OTSC, the judge ordered electronic 

communication between defendant and the children. The judge confirmed 

plaintiff's address in South Carolina and established parenting time for 

defendant. The judge then tried the case on five days between February and 

May 2017. Thereafter, Judge Pickering made numerous findings of fact and 

conclusions of law as to the unlawful removal and defendant's request for 

custody. 

As to the relocation, the judge concluded that plaintiff violated N.J.S.A. 

9:2-2. The judge found plaintiff moved out of State without defendant's 

consent, knowing that the May 2015 order applied only to Florida. The judge 

found that the proposed order, the one only plaintiff signed and presented to 

the motion judge, added additional proof that plaintiff understood that the May 

2015 order did not authorize the move to South Carolina. After assessing 

credibility issues, he found that plaintiff intentionally left New Jersey on April 

4, knowing it was illegal. The judge entered a parenting plan, and then 

directed plaintiff to consult with defendant about all "issues to which 

[defendant] is entitled to have input [on] as a joint custodian," such as where in 
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New Jersey the children would reside. The order required the children be 

returned within ten days. 

The judge then denied defendant's request to modify the custody 

arrangement after applying the governing case law and factors listed in 

N.J.S.A. 9:2-4(c).

1

 The judge used these factors solely for his custody 

analysis. Although the factors are relevant for determining whether "cause" 

exists under N.J.S.A. 9:2-2, a judge undertaking such an evaluation may 

 

1

 N.J.S.A. 9:2-4(c) provides factors a court must consider when awarding 

custody and states in part:

[T]he court shall consider but not be limited to the 

following factors: the parents' ability to agree, 

communicate and cooperate in matters relating to the 

child; the parents' willingness to accept custody and 

any history of unwillingness to allow parenting time 

not based on substantiated abuse; the interaction and 

relationship of the child with its parents and siblings; 

the history of domestic violence, if any; the safety of 

the child and the safety of either parent from physical 

abuse by the other parent; the preference of the child 

when of sufficient age and capacity to reason so as to 

form an intelligent decision; the needs of the child; the 

stability of the home environment offered; the quality 

and continuity of the child's education; the fitness of 

the parents; the geographical proximity of the parents' 

homes; the extent and quality of the time spent with 

the child prior to or subsequent to the separation; the 

parents' employment responsibilities; and the age and 

number of the children. A parent shall not be deemed 

unfit unless the parents' conduct has a substantial 

adverse effect on the child.
A-0468-17T3 8

supplement the "cause" analysis by considering other factors as appropriate. 

Bisbing v. Bisbing, 230 N.J. 309, 338 (2017). The judge considered the 

N.J.S.A. 9:2-4(c) factors using the evidence relevant to custody. Plaintiff 

never asked the judge – before the move, during the trial, or before the August 

17, 2017 order – to determine whether he had "cause" to relocate to South 

Carolina. Thus, the failure to do so deprived the judge from supplementing his 

findings and conclusions regarding the N.J.S.A. 9:2-4(c) factors. 

Plaintiff then moved for reconsideration of the August 17, 2017 order 

requiring that he return the children to New Jersey. As part of his motion, 

plaintiff requested – for the first time – that the judge perform a best interests 

of the child analysis. Up until this point, plaintiff had never requested such an 

analysis, be it one guided by Baures or Bisbing.

2 Plaintiff did not ask the 

judge on reconsideration to evaluate whether he had "cause" to remove the 

 

2

 Up to the end of trial testimony, Baures v. Lewis, 167 N.J. 91 (2001), was 

the controlling law. The Court decided Bisbing between the end of the trial 

and issuance of the August 17, 2017 order. "Under Baures, a parent with 

primary custody seeking to relocate children out of state over the objection of 

the other parent must demonstrate only that there is a good-faith reason for an 

interstate move and that the relocation 'will not be inimical to the child's 

interests.'" Bisbing, 230 N.J. at 312 (quoting Baures, 167 N.J. at 118). 

Bisbing required courts to "conduct a best interests analysis to determine 

'cause' under N.J.S.A. 9:2-2 in all contested relocation disputes in which the 

parents share legal custody – whether the custody arrangement designates a 

parent of primary residence and a parent of alternate residence, or provides for 

equally shared custody." Id. at 335. 
A-0468-17T3 9

children to South Carolina. It was too late for that. Instead, plaintiff 

contended that before the judge ordered him to return the children to New 

Jersey, defendant had the burden to show it would be in the best interests of 

the children to do so. Judge Pickering rejected plaintiff's burden-shifting 

argument and denied reconsideration rendering a twenty-page written decision. 

II. 

On appeal, plaintiff argues that the May 2015 order authorized the move 

to South Carolina. He contends that even if that was not the case, then the 

motion judge's temporary order permitting the children to remain in South 

Carolina satisfied the requirements of N.J.S.A. 9:2-2. Plaintiff asserts that the

language of this statute does not require he first obtain an order permitting the 

relocation before the actual move. The premise of his argument is that a 

parent could remove his children from this State – without the other parent's 

consent or a court order – and then after the move, make the other parent

demonstrate on her motion to return the children to New Jersey that it would 

be in their best interests to do so. 

A.

We begin by interpreting N.J.S.A. 9:2-2. Our standard of review is well 

settled. "In matters of statutory interpretation, our review is de novo." Verry 

v. Franklin Fire Dist. No. 1, 230 N.J. 285, 294 (2017). "The Legislature's 
A-0468-17T3 10

intent is the paramount goal when interpreting a statute and, generally, the best 

indicator of that intent is the statutory language." DiProspero v. Penn, 183 

N.J. 477, 492 (2005). A court should "ascribe to the statutory words their 

ordinary meaning and significance, and read them in context with related 

provisions so as to give sense to the legislation as a whole." Ibid. (citations 

omitted). "[I]f there is ambiguity in the statutory language that leads to more 

than one plausible interpretation, we may turn to extrinsic evidence, 'including 

legislative history, committee reports, and contemporaneous construction.'" 

Id. at 492-93 (quoting Cherry Hill Manor Assocs. v. Faugno, 182 N.J. 64, 75

(2004)).

N.J.S.A. 9:2-2 governs plaintiff's removal of the children from New 

Jersey. In relevant part, the statute "requires a showing of 'cause' before a 

court will authorize the . . . removal of a child to another state without the 

consent of both parents . . . ." Bisbing, 230 N.J. at 323 (emphasis added). 

Plaintiff's counsel wrote in his merits brief, "[n]othing in the statute requires 

that an order allowing relocation must precede the actual move." Such an 

assertion is contrary to the plain and unambiguous text of N.J.S.A. 9:2-2, 

which states: 

When the Superior Court has jurisdiction over the 

custody and maintenance of the minor children of 

parents divorced, separated or living separate, and 

such children are natives of this State, or have resided 
A-0468-17T3 11

five years within its limits, they shall not be removed 

out of its jurisdiction against their own consent, if of 

suitable age to signify the same, nor while under that 

age without the consent of both parents, unless the 

court, upon cause shown, shall otherwise order. The 

court, upon application of any person in behalf of such 

minors, may require such security and issue such writs 

and processes as shall be deemed proper to effect the 

purposes of this section.

[Emphasis added.]

There is no need to look to extrinsic evidence. The children "shall not be 

removed out of [this] jurisdiction . . . without the consent of both parents, 

unless the court, upon cause shown, shall otherwise order." Ibid. The plain 

text of the statute prohibited plaintiff from removing the children from New 

Jersey without consent or a court order.

B.

Plaintiff says he had no obligation to file a motion seeking permission to 

relocate to South Carolina with the children. To support that assertion, he 

relies on the May 2015 order and the motion judge's rulings. We reject, 

however, plaintiff's argument that the May 2015 order, or the motion judge's 

rulings, somehow satisfied his statutory obligation under N.J.S.A. 9:2-2 that he 

first obtain defendant's consent or obtain a court order before making the move 

to South Carolina. As to these contentions, the judge made detailed findings 

and conclusions of law. 
A-0468-17T3 12

The scope of our review of the trial judge's findings of fact is limited. 

Cesare v. Cesare, 154 N.J. 394, 411 (1998). We will not reverse if on appeal 

the record supports the judge's factual findings by adequate, substantial, and 

credible evidence. Id. at 411-12 (citing Rova Farms Resort, Inc. v. Inv'rs Ins. 

Co., 65 N.J. 474, 484 (1974)). Moreover, "[b]ecause of the family courts' 

special jurisdiction and expertise in family matters, appellate courts should 

accord deference to [the judge's] fact[-]finding." Id. at 413. Although we 

defer to the judge's findings of fact when supported by sufficient evidence, we 

owe no deference to the judge's decision on an issue of law or the legal 

consequences that flow from established facts. Manalapan Realty, L.P. v. 

Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Applying these 

standards, we have no reason to disturb the judge's findings of fact or 

conclusions of law. 

The judge found that the May 2015 order (which did not alter the parties' 

joint custody) authorized plaintiff and the children to relocate only to Florida. 

The judge reached that finding after taking testimony from the parties and 

reading the order. The judge found that in March 2014, plaintiff began living 

with an individual who had two children of her own. He married her (the 

wife) in the summer of 2014, and plaintiff wished to take his children to 

Florida, to care for the wife's mother. The parties then negotiated the terms of 
A-0468-17T3 13

the May 2015 order, which included parenting time in New Jersey and Florida. 

Defendant testified that she understood the relocation would be around the 

Orlando area, where the wife's mother lived. The parties' negotiations had 

nothing to do with the children living in South Carolina under any 

circumstances.

But while still living in New Jersey with plaintiff in November 2015, the 

wife (who has since divorced plaintiff) and her two children left plaintiff and 

moved to Florida. The judge found that plaintiff then moved to South 

Carolina, while defendant's motion for overnight parenting time was pending,

"to deny defendant parenting time," specifically to "avoid the possibility that 

the [motion judge would grant] overnight visits with defendant." He found 

plaintiff "took actions to be sure defendant did not have sufficient time to get a 

court order to stop the move." 

Furthermore, in addition to the plain terms of the May 2015 order, the 

judge found plaintiff knew he lacked defendant's consent to move to South 

Carolina. Two weeks before plaintiff relocated to South Carolina, plaintiff 

retained counsel to prepare the proposed order seeking defendant's consent, 

which she never gave. And only plaintiff signed the proposed order on the 

morning he took the children to South Carolina. The judge therefore found 

that plaintiff moved to South Carolina "knowing full well that he was doing so 
A-0468-17T3 14

against the law of the State of New Jersey and the May 1, 2015 [c]onsent 

[o]rder." 

Finally, plaintiff's contention that the motion judge's ruling satisfied 

N.J.S.A. 9:2-2 ignores, in the absence of defendant's consent, the statute's 

requirement that he show "cause" before removing the children from New 

Jersey. The motion judge made no such finding, and stated that plaintiff's 

relocation to South Carolina was essentially procedurally deficient. The 

temporary order entered by the motion judge did not satisfy the statute, 

especially because its issuance ignored plaintiff's ultimate burden of proof 

obligation. And there is no suggestion that defendant had consented to her 

children remaining in South Carolina, as ordered by the motion judge. In fact, 

the temporary arrangement led to defendant's OTSC. 

C.

Plaintiff argues that once he relocated with the children to South 

Carolina – without defendant's consent or a court order – defendant had the 

burden to show that plaintiff lacked cause to remove them from New Jersey 

before the judge could mandate their return. Plaintiff suggests that defendant

would do that by demonstrating that it would be in the best interests of the 

children to return them to New Jersey. According to plaintiff's logic, 

defendant would need to file a motion to return the children, who he had
A-0468-17T3 15

removed in violation of N.J.S.A. 9:2-2, and as part of that motion, assume the 

burden. 

Such an approach would encourage individuals to first remove children 

from this jurisdiction, then later seek court approval. When the other parent

objects beforehand, the process envisioned by N.J.S.A. 9:2-2 is for the parent 

seeking to relocate to first apply for an order permitting relocation, establish 

"cause," then relocate only if permitted by the court. The process does not 

permit a parent to relocate and then attempt to shift the burden to the other 

parent to show on an application to return the children that it would be in their 

best interests to do so. 

When the other parent objects, the parent seeking removal of the 

children has the ultimate burden of proof by the preponderance of the 

evidence. Requiring the burden of proof to shift to defendant to show that it 

would be in the children's best interests, as a condition precedent to returning 

them to New Jersey, ignores the Legislature's reason for requiring a 

preliminary demonstration of "cause" under N.J.S.A. 9:2-2 before the actual 

removal. It is to "preserve the rights of the noncustodial parent and the child 

to maintain and develop their familial relationship." Bisbing, 230 N.J. at 323 

(citations and internal quotation marks omitted). Under the facts of this case, 

preserving defendant's rights to maintain and develop her familial relationship 
A-0468-17T3 16

with the children required – by the plain text of N.J.S.A. 9:2-2 – that plaintiff 

first obtain an order, before removing the children, by showing "cause" existed 

for the relocation to South Carolina. 

Plaintiff had numerous opportunities to apply for an order permitting the 

move before relocating to South Carolina. He could have filed such an 

application after the parties consented to the May 2015 order, when it became 

apparent to him that he would not be following through on his intention to live 

in Florida with the wife. Or plaintiff could have filed an OTSC immediately 

after defendant first objected to the move on April 3. There was no basis 

whatsoever to move the children to South Carolina without plaintiff first 

obtaining a court order to do so. 

If plaintiff sought an order in April 2016, before he removed the children 

from New Jersey, the judge would have analyzed whether "cause" existed for 

the removal by applying the Baures standard. That is, plaintiff (as the parent 

seeking removal) would have had the burden of establishing "cause" under 

N.J.S.A. 9:2-2 by showing "good faith and that the move will not be inimical 

to the [children's] interest." Id. at 324 (quoting Baures, 167 N.J. at 116)

(internal quotation marks omitted). And if he had sought such an order, the 

judge would have considered at a minimum the twelve factors relevant to his 

burden of proof. Baures, 167 N.J. at 116-17. Those factors would have been:
A-0468-17T3 17

(1) the reasons given for the move; (2) the reasons 

given for the opposition; (3) the past history of 

dealings between the parties insofar as it bears on the 

reasons advanced by both parties for supporting and 

opposing the move; (4) whether the child will receive 

educational, health and leisure opportunities at least

equal to what is available here; (5) any special needs 

or talents of the child that require accommodation and 

whether such accommodation or its equivalent is 

available in the new location; (6) whether a visitation 

and communication schedule can be developed that 

will allow the noncustodial parent to maintain a full 

and continuous relationship with the child; (7) the 

likelihood that the custodial parent will continue to 

foster the child's relationship with the noncustodial 

parent if the move is allowed; (8) the effect of the 

move on extended family relationships here and in the 

new location; (9) if the child is of age, his or her 

preference; (10) whether the child is entering his or 

her senior year in high school at which point he or she 

should generally not be moved until graduation 

without his or her consent; (11) whether the 

noncustodial parent has the ability to relocate; (12) 

any other factor bearing on the child's interest. 

[Ibid.]

If plaintiff had not unilaterally removed the children and sought an order 

permitting the removal after the Court decided Bisbing on August 8, 2017, 

then the judge would have analyzed whether cause existed for the removal by 

applying the Bisbing standard. In place of the Baures standard, the Court 

stated in pertinent part that courts 

should conduct a best interests analysis to determine 

"cause" under N.J.S.A. 9:2-2 in all contested 

relocation disputes in which the parents share legal 
A-0468-17T3 18

custody — whether the custody arrangement 

designates a parent of primary residence and a parent 

of alternate residence, or provides for equally shared 

custody . . . . A number of the statutory best interests 

factors will be directly relevant in typical relocation 

decisions and additional factors not set forth in the 

statute may also be considered in a given case. 

In the best interests analysis, the parent of 

primary residence may have important insights about 

the arrangement that will most effectively serve the 

child. The parent of alternate residence may similarly 

offer significant information about the child. The 

views of other adults with close relationships with the 

child may also inform the court's decision . . . . The 

trial [judge] may consider other evidence, including 

documentary evidence, interviews with the children at 

the [judge's] discretion, and expert testimony. 

[Bisbing, 230 N.J. at 335 (citations omitted).]

 

The Court concluded that under N.J.S.A. 9:2-2, "'cause' should be determined 

by a best interests analysis in which the court will consider all relevant factors 

set forth in N.J.S.A. 9:2-4(c), supplemented by other factors as appropriate." 

Id. at 338 (emphasis added). Because plaintiff never made such an 

application, the parties and the judge never argued what other factors might be 

relevant to relocation. 

Therefore, under either Baures or Bisbing, had plaintiff sought an order 

under N.J.S.A. 9:2-2 to remove the children from New Jersey, plaintiff had the 

ultimate burden to show "cause" for the desired removal. But the judge and 
A-0468-17T3 19

parties never reached that step because plaintiff unlawfully removed the 

children. We flatly reject plaintiff's burden-shifting contention. 

Finally, we have considered plaintiff's assertion that the judge failed to 

appoint a guardian ad litem for the children. Under the facts of this case, we 

conclude that this contention and plaintiff's remaining arguments – including 

that on this appeal, we should essentially retain original jurisdiction and enter 

an order permitting him to relocate with the children to South Carolina – are 

without sufficient merit to warrant discussion in a written opinion. R. 2:11-

3(e)(1)(E). 

Affirmed.