SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-12-98T3F
TODD PFEIFFER,
Plaintiff-Appellant,
v.
SHARON ILSON,
Defendant-Respondent.
___________________________________
Argued: December 15, 1998 - Decided: January 27, 1999
Before Judges Long, Kestin and Carchman.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Warren County,
whose opinion is reported at ___ N.J. Super. ___
(Ch. Div. 1999).
Lynn Fontaine Newsome argued the cause for
appellant (Donahue, Braun, Hagan, Klein &
Newsome, attorneys; Ms. Newsome and Debra S.
Weisberg, on the brief).
Laurie A. Bernstein argued the cause for respondent.
The opinion of the court was delivered by
KESTIN, J.A.D.
Plaintiff appeals from the trial court's orders permitting
defendant to move the parties' two minor children, ages eight and
four, to Los Angeles, California; and denying, inter alia,
plaintiff's motion for a transfer of physical custody pendente
lite. The orders also established some terms governing plaintiff's
visitation with the children.
The primary argument advanced on appeal is that the trial
court erred in granting defendant's motion for permission to move
the children without a plenary hearing to determine whether the
standards of Holder v. Polanski,
111 N.J. 344 (1988), had been
satisfied. See also Cooper v. Cooper,
99 N.J. 42 (1984); Winer v.
Winer,
241 N.J. Super. 510, 515-21 (App. Div. 1990). Plaintiff
also argues that the trial court misapplied its discretion in
denying his motion for pendente lite physical custody of the
children; and that, "[p]ursuant to R. 5:3-3, an expert must be
appointed . . . to resolve the issue of custody."
We affirm substantially for the reasons articulated by Judge
O'Connor in her comprehensive opinion disposing of all the issues
raised by the parties, ___ N.J. Super. ___ (Ch. Div. 1998). We add
a word only to emphasize the holding that a plenary hearing is not
necessary in every case where removal of children is at issue, but
rather only where a prima facie showing has been made that a
genuine issue of fact exists bearing upon a critical question such
as the best interests of the children, interference with parental
rights, or the existence of a good faith reason to move. Here,
Judge O'Connor's analysis that no such issue genuinely existed was
unflawed; therefore, she was able, appropriately, to apply the
Holder criteria without the need for further factual development
beyond that provided by the parties in the motion papers and on
oral argument. As Judge O'Connor also suggested, it is problematic
whether a legitimate removal controversy exists at all where the
parent challenging the move has, himself or herself, relocated to
a distant place. In the context of the circumstances in this case,
we need not address that question, however.
Affirmed.