FULL TRANSCRIPT

Welcome to another episode of the exEXPERTS DIVORCE etc… Podcast where we give you all kinds of information and tips on everything divorce. Why? We’ve lived it, so we get it! We’re T.H. & Jessica. 

Jessica: Today’s podcast guest is Sandra Fava, a family law attorney partner in the family law department of Fox Rothschild working out of the Morristown, New Jersey office. We have connected with Sandra a number of times at the organization, Believes, Inspire, Grow, and love her perspective and the straight-to-the-point way that she talks about things.

We have her on today and we’re going to be talking all about relocation, which we understand has become a much bigger issue in terms of divorce, especially since COVID. Sandra, welcome to the podcast.

Sandra: Thanks, ladies, I’m really excited to be here with you today.

Jessica: We really appreciate your time. With COVID, as we know, no matter where anybody lived in the country, everyone started working from home for a really long extended period of time. People were, in fact, temporarily, so to speak, relocating and moving into different locations, whether it was closer to family or things like that. But when it comes to divorce, now that the world is sort of getting back to normal, there are so many issues surrounding it.

I think the first place to start is if someone has custody of their child, can they just move wherever they want?

Sandra: Yes, so the answer to that is no unless their agreement or their divorce order gives them that authority, which is very unlikely. Where you have custody or a visitation schedule where people are, if not sharing time with their children 50/50, at least sharing it on some level, because there is a standard here in New Jersey where I practice that tells people what needs to happen if one of them wants to leave the state of New Jersey. Just because you are deemed a parent of primary residence, these are all key terms that people will hear and or read in their divorce documents, or primary residential parent doesn’t mean that you can automatically just get up and leave because you have that kind of title.

T.H.: Is there an age difference though for when you can? Because I know that in my divorce agreement there was a certain like, neither one of us can move beyond 50 miles from the primary parent location–I don’t even know if they use that word anymore, primary parent, but whatever.

I was the home base and so we couldn’t move beyond 50 miles and you also could not move out of state. How does this happen now?

Sandra: The thing that you’re talking about, not being allowed to move within a certain mile, we call those radius clauses. And again, those are things that people voluntarily agree to. If you were in front of a judge having a trial, more likely than not, it’s very rare that judges will order radius clauses, again, because it’s contrary to the law in our state at the moment. Those types of agreements are voluntarily consensually agreed upon between two parents where they say we want the kids to stay in this area for the schools, or for their friends, or for whatever combination of reasons, and so we’re going to pick a radius clause. Sometimes it is 50 miles, sometimes it is 10 miles, and sometimes it’s 15. Those are negotiated points in a document. When a child reaches the age of majority when they’re able to leave your home, whether it is to go to work full time, or enter the US armed services, or to go away to college, then you don’t need permission to relocate. If they’re of the age of majority, which is 18 here in New Jersey, then a parent can choose to go wherever they want at that point. The older the children are, generally speaking, the more input they have into whether or not they want to move or they want to relocate, but that becomes, in my opinion, a double-edged sword because also the older the children become more manipulative. I’m not saying that children are bad, they’re not. Typical teens, preteens, they know how to work the parents and work the system, and so they will oftentimes if they want to stay because of a boyfriend or a girlfriend, or they just don’t want to leave their friends, it’s not necessarily that they’re making a decision based on what is truly best for them, but making decisions based on what young brains make their decisions on.

T.H.: It’s best for them [laughs].

Sandra: Their needs at that distinct moment.

Jessica: During COVID, when really people were fleeing certain areas, I’m here in New York City and people were definitely racing to get out, it definitely seemed that there was a lot of circumstances where one parent or the other were taking the kids into different locations. Everyone, as we know at the time, thought it was going to be a very temporary situation. Then as time went on and on and on, people were quarantined together, you had to be in your pods, and there are a lot of people that were obviously super strict about it. Then there came a point at which people had already been living far away or in different places for extended periods of time. I know of some circumstances where the people were like, you know what, I’m not going back to my office, and I’m going to stay here in Austin, Texas, whatever the case may be.

What are you seeing and how are those things being handled now that COVID is such a huge part of the equation and has allowed people to be able to work from home and live anywhere?

Sandra: Yeah, so COVID definitely threw an interesting wrench into the mix of this whole concept of relocation because just like you said, Jessica, I found almost somewhat surprisingly that people were really flexible with what they would consider a temporary move. We rented a place in Florida, and we’re going to go down there for a month. Then a month turned into two months because then school ended up virtual, not only for the end of the ‘19 school year but for all of the ‘20 school year, right? Or maybe I have my years wrong–

Jessica: Those are right.

Sandra: Okay, good, and then exactly that. What the adults realized and a lot of corporations realized is we can have a lot of flexibility. Workers said I don’t need to live in New York, or New Jersey, or high-cost living areas. I’m here, I can stay down here, I can still do my job, and I’m doing it well. Depending on what industry you were in, there was a lot of flexibility with whether or not you had to return to the office, when you had to return, and how often you had to return. The devil is in the details for those families. If you just had a very lax loose conversation, hey, we rented a place down here, we’re going to go down here for a couple of weeks, and then we’ll come back, then that just ended up getting extended and nothing was really formalized. Now that parent is saying, like your example, hey, I’m going to stay in Austin, Texas, and we’ve already been here now almost 18 months. The other parent has a much difficult or harder argument to say, no, you have to come back to New Jersey.

Jessica: Why?

Sandra: Because it was a permissive move. They didn’t object to it and with the passage of time, it becomes a new normal.

T.H.: Right, you set a new precedent.

Sandra: Exactly, you set a new precedent.

You established new boundaries and new normals. Now that child is a year and a half older and they’ve established new relationships. The standard in New Jersey changed in I think 2016, in a New Jersey Supreme Court case, Bisbing vs. Bisbing. The standard became what is in the best interest of the children. It used to be that it couldn’t be inimical to the children’s best interest, which means it couldn’t harm the children. Now, the viewpoint, although it seems like we’re mincing words because we’re lawyers and judges and that’s what we love to do, best interest is really a higher standard that says is this what’s best for the children? A lot of times, flip-flopping in a situation, whether it’s between mom and dad’s house, or living in one place and going to another place, or schools, or even a therapist, generally, those kinds of erratic changes are not good because studies show us that children do best with consistency and structure. If they are in a new place and they’ve got consistency and they’ve got structure and they can show that they’re doing well, their grades haven’t slipped, they’re getting a quality education, something–

Jessica: They’re not seeing that other parent.

T.H.: Right, now you only have one parent in your life.

Sandra: Even before COVID, we were using technology just like Zoom and FaceTime for parents who were relocating for non-COVID reasons, right? In a typical situation, parents get divorced, I’m going to use gender stereotypes, and mom gets remarried. I actually had a case like this. Her new husband’s a doctor and he gets a great fantastic job in a hospital in Pennsylvania. She wants to move and she’s pregnant by the way, with a child with her new husband. She’s the parent of primary residence and she wants to move. The court allowed her to move because it was not a bad faith request to move. She didn’t do it just to spite her spouse.

The way they make up for the lost time is you use a lot of technologies, FaceTime– over breaks, long weekends, and then certainly in the summer. And so that’s the give and take is that you can’t do that. I’ve had other cases where parents, like dad would fly every other weekend. He moved to Florida, and he’d come up every other weekend from New Jersey just to have time with his kids that he moved out of state from. Then when they got to a certain age, they could fly unaccompanied and everybody was comfortable with it, and the kids would get on a plane. I mean, people do it.

T.H.: That’s very disruptive. Honestly, when we were figuring out our custody time, he wanted 50/50. He wanted one night my house, one night his house, one night mine. I’m like they can’t be packing their bags every day. They’re not even going to know where they are. Then when you bring this up, if my kids were younger, my ex is now living in Florida so this would be a really big problem, but all my children are away at school, it’s a little bit more manageable, but just the back and forth living two miles away is a lot. The trauma–I would imagine for a child to pack your bags and get on a plane, because now you can travel alone, to go see your parent for four days and then get back on a plane and come home, it’s like, how is that the best interest of the child?

Sandra: I have a lot of parents, and more often I would say mothers, who have that exact reaction. I’ve had this conversation ad nauseam, at CLEs judges are talking about it, but to me, more importantly, I’ve had it with a lot of forensic child psychologists who have authored articles or who suggest articles that they haven’t authored but that they rely upon, and so what you’re explaining T.H. is a lot more of a fear of a parent than it is of a child.

Children are a lot more flexible and adaptable than we give them credit for than adults are. You’re thinking about, oh, I have to get on a plane and they’re thinking that’s so cool. I get to go on a plane by myself and go to Florida and swim in the pool, and we’re going to do this. They’re not looking at it like that necessarily. Now older children definitely do have a harder time with an adjustment because as we said earlier, they’re used to their stuff, there are places they hang out at, and they don’t want to leave their friends. That’s definitely a tougher group to address when it comes to something like this.

But younger children are more flexible. Really what they want to know is, and what’s important to them is that mom and dad, or mom and mom, or dad and dad want to see me. They still love me even though we’re not living in the same house. Now, I think an important factor, a point that you raised T.H. about when you’re in the vicinity, when you’re close to each other and you do 50/50, the one thing that irks me as an attorney who’s guiding people is I say to people, please don’t suitcase your kid back and forth. Keep enough stuff at your house. They just need to come and grab whatever they have in their hands, whether it’s a teddy or something like that and come to your house. It shouldn’t be that they have to pack all their stuff. That gives kids anxiety because they miss something. They’re going to forget their homework. If you have parents who can’t get along, who can’t put their kids ahead of themselves–I can’t tell you how many times I’ve gotten a phone call on a Friday, Saturday, Sunday, my son left his book at my ex’s house, and my ex won’t bring the book over and says I can’t go over. If I go to the curb, he’s going to call the police on me. What do I do? I’m like, well, he’s going to miss this assignment then because certainly, you shouldn’t be calling the police. That’s not healthy for them. You just have to explain to the teacher what happened over the weekend.

Jessica: That’s really unfortunate, totally. It sounds like you’re saying if someone is already divorced, and they have their agreement set up, and they live in whatever vicinity of each other, and everything is already set, that maybe it’s not that difficult to relocate out of state if they decide to?

Sandra: It is difficult. They have to prove that this relocation is in the best interest of the child or children. It’s a higher standard than what it used to be. I think what I was saying is during COVID, it became a bit easier because everything was just so fluid and wishy-washy. I think people temporarily were kinder almost to one another because they were scared or somebody got COVID and so they had to really stop and think about, okay, what am I asking for? What are we doing here? I think if you took COVID out of the picture, people who are divorced, they’ve lived in New Jersey, they’ve raised their children here, and then all of a sudden one of them wants to relocate for whatever the reason is, that is a harder hurdle to jump over at this point because now the standard is the best interest of the child or the children. It is having a mini hearing in order to get the court’s approval if your former spouse won’t consent to it. At that hearing, the judge is looking at, okay, why are you asking for this relocation? What is the custodial arrangement actually being exercised currently? Forensic child psychologists are often involved to talk to the child or children and to the parents to say, how do you feel about this? What’s the current situation? What’s your relationship with mom and dad? How would you feel about it if mom or dad moved here and you wouldn’t only be able to see them this way? Taking into account those things, making sure that they have the same access to the same similar quality of medical doctors and hospitals so that their safety and well being is not at all jeopardized, education is important, that they’re going to have the same access to similarly rated quality school systems, things like that. All of that’s taken into account along with the testimony of parents, the testimony of experts, and whoever else may be required to testify. Then after that hearing, a judge renders a decision. Not only is it difficult, but it can also be a time-consuming process, and it can be very expensive.

T.H.: And expensive. Flying your kids back and forth to places now, that’s a huge additional expense. Let’s just put this scenario out there. Okay, so my kids are 10 and 12. It’s for the month of December, and they go with their dad to Florida. It’s nice down there. We live in New Jersey, and then he decides he wants to stay there. The kids really love it and they want to stay there. Again, I’m going to take it from a mom’s perspective. I could feel it in my blood boiling right now. I’d be like, he freaking kidnapped the kids. He brainwashed them. They don’t want to come here anymore, and I’m their mom. Talking on Zoom with your kid isn’t a hug, and it’s not wiping away their tears. I understand technology keeps people together, but it’s just not the same. It’s not the same. I mean, my kids are all away at school, and it’s not the same as when you’re with them. What happens in that situation? They don’t want to come home, they’re with dad, and now you’re going to go through the court system, which I’m assuming is based in Jersey, or whatever state they were residing in primarily. He has to essentially come back to New Jersey court to figure all of this out, but what happens in that situation?

Sandra: If it’s exactly as you’ve just described, if that’s the real scenario, the first thing that I would do would be to file an emergent application in the courts here in New Jersey, to have those kids immediately returned to New Jersey.

Often, if it’s exactly that, where there’s nothing in writing that says, hey, you can stay for as long as you want, because that’s what trips people up I think. Listen, I am fully aware of how expensive the divorce process is for people, especially people who can’t get along and who fight. There are a lot of personalities in the room and strong emotions and all of that. Generally, when clients go through that, and now they have a little post-judgment issue and they’re a couple of months past that, the last thing they want to do is call up the lawyer they used or anybody else and start that whole process again. They oftentimes think, right, we can figure this out ourselves, right? I’m going to send an email that says okay, fine, you can take them, it’s good. This is one of the things that I would offer. A tip is if you want to do that, that’s fine, but you need to make sure you have clear parameters around what you’re agreeing to.

Jessica: Like an end date

Sandra: That’s right. So like, dear Tom, thanks for your email below. I think it’s wonderful that the kids can have some time with you in Florida, but I expect that they will be on the flight home to New Jersey no later than December 27th. We can work out the details, but my acceptance is conditioned upon us having an end date in sight. Obviously, I’m a lawyer. I talk like this every day, so it’s easy for me to whip that together, but not everybody’s thinking like that. People aren’t always thinking about the next steps, or what happens, or the what-ifs. In your scenario, T.H., if it’s just that, and it’s kind of just a very informal agreement, a phone conversation let’s just say, and you file an emergent application, I would say nine times out of 10, the judge would order those children returned to New Jersey. Then if he wants to make an application for them to go to Florida, he has to file something else here in New Jersey. That application is issued, it’s sent down to Florida, and it’s processed through whatever the courts are in the county where they are. Sometimes there are marshals that are involved to make sure that, especially if there are flights, to make sure the kids get on a plane, and you’re at the airport, and they’re returned to you. Now they get off the plane, and however they feel, they feel. Certainly, parental kidnapping is a thing, and it’s not a permissible thing. People do what you’re talking about, and so we don’t allow that to happen at all.

Jessica: I feel like there’s a lot to be covered in this conversation, but we only have so much time. I want to kind of wrap it up with the question of, if someone is about to get divorced, everything hasn’t been finalized yet, and they know that they may want to relocate after the divorce is finalized. What would be the right way/best way to prepare and go about that?

Sandra: Yeah. What I say to people when I’m working with them early on is here are the pieces of your life’s puzzle in this context of divorce. We have custody, so alright, now let’s look at custody and break down what that means. Just by talking to people and learning their stories, you’ll often hear, well, I’m here alone, all my family’s in Ohio, or we met in college, and I’m originally from California, and then we moved out here for a job. I’m always asking the question like, okay, how does that feel for you post-divorce? Some people will say, oh, no, it’s fine. I have my friends, I really feel like I’m now like a New Jerseyan, and I’m settled. Other people will say, well, really, I would like to go back. I think that people, you have to be honest with what your expectations are. You can’t on the steps of the courthouse all of a sudden say, I think I want to move back to California because you’re going to be looked at as acting in bad faith. Because it’s really going to be hard to tell a judge, well, you didn’t really think of it judge until right now. The judge is like, well, what’s been going on for the last year, two, three years that this divorce has been happening? Or if you’re in the middle of the process and all of a sudden a job comes up and you’re interested in that job, you’ve got to let your lawyer know right then and there, like, hey, I’m really interested in this, I would like to pursue this, so they can, depending on where you are in the case, let the other attorney know. If you already have experts involved, that’s something that an expert can add to their evaluations. So if you’re already having a custody disagreement about time sharing or where the kids are going to live and with whom, you can add this piece to their analysis or evaluation, saying, hey, I’m also thinking about relocating. I would like to return to my family.

Jessica: So full disclosure, as much as you can?

Sandra: Yes.

T.H.: It might be a good idea to have it in there even if you weren’t thinking about it. Like that’s the stuff that Jessica and I–

Jessica: But that’s the radius thing. My radius thing is that I can move within 20 miles, but it does not say that I can’t move out of state because my conversation with my first ex-husband was you can’t force me to stay in New York City unless you’re going to make sure to pay for the cost of living here versus if I move over the bridge, and I decide to live in Jersey. Logistically, there really isn’t a way to make that work because if my kids are going to school in New York, it doesn’t make sense for one parent to live in New Jersey. At the end of the day, the truth was, and he knew it, I was working in TV in New York City, my hours were crazy, and there was no way in hell I was commuting in at six o’clock in the morning, or whatever the case may be. I agreed to the radius clause. It really wasn’t a big deal to me at the time, and there hasn’t been a point at which I’ve wished that I could move somewhere else. Our lives are here, and that’s fine. But I can totally understand people who are thinking that they don’t necessarily want to disclose everything because they’re afraid of what the reactions of the other party may be. And so they think, well, I’ll just get through this part of the divorce now, and then I’ll deal with that on the back end.

Sandra: I think that’s exactly what happens, and that makes it all the harder for that person when they come back after the back end is done and says, okay, now I want to move. You’re like, well, why didn’t you tell me that a few months ago before we signed this document?

The thing is if you’re working with an attorney and you don’t feel that you can be honest, you probably aren’t working with the right attorney. I say to people, we’re going to work together, you’re going to tell me your deepest, darkest secrets, and more likely than not, things that you might not share with your girlfriends. You have to like me in order to do that. If you don’t feel like you can, then we’re just not the right fit, and it is okay. Not everybody is the right fit for everybody. But you need to trust me to be able to say to me, hey, I’m thinking about this. What do you think? Then I’ll tell you, well, tell me why you want to do it? Okay, have you thought about this? Maybe we can work it out this way. Everybody’s different, and everything is so unique. The relationship that one client may have with their spouse versus what the two of you have gone through, as you know, it’s just very unique and very different. It doesn’t necessarily have to be a war. There are ways to talk about it and work around it. Some people say I don’t want them to move now, but I’d be open to thinking about it when the kids are a certain age because at that point, I’m going to be this far in my career and I’ve always thought about doing this. Maybe there was a family plan that was kind of rumbled around at some point in time. Maybe both people aren’t from New Jersey and so at a certain stage, they’d both like to leave. It’s not always the worst-case scenario, but how am I to know that if you’re not sharing that with me?

T.H.: And if you’re not even there yet in your life, I mean, the three of us know that things can change in an instant in your life in ways that you never predicted. As much planning as you can do to at least have parameters or at least say the words in your agreement, even if you don’t come to a conclusion, but just say at this point this conversation needs to be revisited because I just feel the last thing I want to do is go back to court and call my lawyer. There have been a few times where I was having holy shit moments that I thought I was going to have to do that, and fortunately, I didn’t, but that’s the last place you want to be. Planning for college, planning for relocation, planning for kids’ travel, planning for where they’re going to live, and who is paying their expenses, even after 18, including potential relocation, I would imagine is something that’s really important. If you’re working on it now and paying the lawyers now, then now’s the time.

Sandra: Yeah, if you can do that or build in triggers that allow you to have a conversation again to go back and review. My opinion is that with younger children, people get divorced and they have a two-year-old or a four-year-old, you can’t expect what you agreed with a two-year-old to work when that two-year-old is now seven or eight years old. Their lives change.

Jessica: Or fifteen-year-olds.

Sandra: Right, it’s not a static situation. I remind people of that and say, why don’t we have a clause in here that every two years you’re going to have a discussion?

If you want to change things, you’re going to then go to mediation to try to work it out. If that doesn’t work out, then you’ll go to court, or you can skip meetings and go directly to court, whatever you want to do. And if you feel if like, hey, this is still working for everybody, then you don’t have to do anything and you just keep plugging along, but at least you have something in there. Because otherwise, the burden under the law is that there’s been a change of circumstance. A change of circumstance to some judge isn’t, hey, little Billy now has soccer, baseball, and this that and the other thing after school, and the schedule doesn’t work. Judges don’t really want to hear that because their job is to protect the relationship between parent and child, and they’re saying, I’m sorry, but little Billy’s relationship with mom or dad is more important than his participation in these other things. You don’t want to roll the dice in that way, I don’t think. I wouldn’t want to do it at least, and I have my own three kids, so I put it in that perspective when I am talking to my clients.

Jessica: Yeah, fair enough. Alright, well, we’re definitely going to have to pick up and continue this conversation at another time. That was so much amazing information and really helpful because this is a situation, as we have already acknowledged, COVID made everything different, it’s certainly something that so many couples experience when it comes to keeping their arrangements going and figuring out what works for everyone and where. Thank you so much. For everyone who’s listening, on our exEXPERTS website, there is going to be a page for Sandra, all of her information, her bio, and her links to everything, so you can reach out directly. Thank you so much for your time today.

T.H.: Thank you so much.

Sandra: Thank you for having me. It’s always fun chatting with you ladies.

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