                        NOT FOR PUBLICATION WITHOUT THE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.




                                       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 July 26, 2018

              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
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.

                                    2                            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

                                    3                                A-1666-16T4
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)).


                                   4                           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.

                                        5                               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).

                                        6                                   A-1666-16T4
     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 pre-

Baures 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:

                                 7                           A-1666-16T4
             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

                                        8                            A-1666-16T4
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.




                                    9                              A-1666-16T4
