On certification to the Superior Court, Appellate Division.
For reversal and remandment -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein join in this opinion. For affirmance -- None. The opinion of the Court was delivered by Pollock, J.
Plaintiff, Virginia Holder (formerly Polanski), and defendant, Benjamin H. Polanski, formerly husband and wife, separated on April 1, 1985, and were divorced by a judgment dated September 19, 1986. Holder had a son by a prior marriage, and two children were born of her marriage to Polanski: Katie in 1980 and Melissa in 1982. The trial court denied Holder permission to move to Connecticut with the children. In an unreported opinion, the Appellate Division affirmed. We granted certification, 108 N.J. 656 (1987), and now reverse and remand to the Chancery Division, Matrimonial Part. We conclude that Holder justified her move to Connecticut but because Polanski has had residential custody of the children for nearly two years, a further hearing is necessary to determine the custodial arrangement that will be in the best interests of the children.
The record is sparse, but contains sufficient facts for the determination of this appeal. In the interim between their separation and divorce, Holder, who had physical custody of the children, stated that she wanted to move to Connecticut. Holder's reasons for the move included a desire to live near her sister and brother-in-law, who could provide her with emotional and financial support. Furthermore, her brother-in-law had offered her employment, and she planned to attend the University of Bridgeport. Finally, she said she wanted to put behind her the trauma of her divorce and the recent death of her parents. Polanski opposed the move for various reasons, primarily because of the distance between Flemington, New Jersey,
where they lived, and New Canaan, Connecticut. He contended that the housing, educational, and employment opportunities available to Holder in Connecticut were also available in New Jersey, and that there was no comparative advantage to her or their children in moving to Connecticut.
At the divorce trial, which was held on July 3, 1986, the court reserved decision on Holder's request to relocate with the children and directed her to provide more specific information on housing, education, and employment, which she provided on August 1, 1986. On September 2, 1986, the divorce judgment not yet having been entered, Holder renewed her request. In the interim, she had signed a one-year lease on a house in Connecticut, enrolled her son in high school, paid one-half year's tuition at a nursery school for Melissa, and signed a contract for the balance.
On September 19, 1986, the trial court denied Holder's motion. After acknowledging the sincerity of both parties, the court stated:
There is no question in my mind that the move to Connecticut is in fact something which is beneficial to Virginia Holder * * * [a]nd I'm sure that in somewhat of a traditional sense she is willing to do her best and would in fact do her best to avoid inconveniencing Mr. Polanski, to avoid in any way alienating the children from him, that in fact she would or will in any event, no matter what happens here today, I think foster a relationship between the children and Mr. Polanski.
Although the benefits to her appeared to be substantial, the court found that Holder had not shown that the same benefits were not available in New Jersey. Nor had she established that it was in the best interests of the children to be away from Polanski. Consequently, the court entered an order denying Holder "permission to move to the State of Connecticut with the two children of the marriage; and she shall not remove the children from New Jersey without permission of defendant." In the divorce judgment, also entered on September 19, 1986, the court awarded physical custody of the children to Holder, and granted Polanski visitation rights on alternate weekends, certain holidays, and during the summer vacation. Because of
her prior commitments, Holder nonetheless moved to Connecticut and filed a motion to grant Polanski physical custody, as a result of which the court awarded him "residential custody" of the children and granted Holder visitation rights comparable to ...