RELOCATING WITH CHILDREN -
AN EMERGING PHENOMENA IN THE 21ST CENTURY
By Jennifer Barbaris Fortunato, Esq.
Reprinted with the permission of New Jersey Lawyer, copyright 2001
Seeking to relocate with children post-divorce is becoming increasingly common in today’s geographic mobile society. After a divorce, each parent seeks to build a new, happier and separate life; to rebuild their psychological and social stability; and to improve their economic well-being. Accomplishing these goals often requires relocating out of state for employment purposes and/or for personal reasons such as, remarriage or to be closer to one’s extended family. Statistics show that a divorced parent is more likely to relocate than an intact family. Within four years after divorce, seventy-five percent of custodial mothers will move at least once and over half of them will move again. See “Post-Judgment Relocation Issues, Linda R. Feinberg, A.J.S.C., December 1, 1999.
Recently, our Supreme Court, in the case of Baures v. Lewis, 167 N.J. 91 (2001), squarely addressed this easing the restrictions on the custodial parent’s ability to relocate out of state with the children. Creating a shift in the body of law addressing relocation issues, our Supreme Court, in Baures, supra, modified and eased its legal standards by which a custodial parent will be granted permission to move out of state absent consent of the non-custodial parent. The “real advantage” requirement, as set forth in the earlier decisions of Copper and Holder, has been modified , now requiring that the custodial parent must make a prima facie showing of a “good faith reason to move” instead, and that the move will not be inimical to the children’s best interests. Id. at 118.
In the State of New Jersey, there has been a long-standing legislative policy that children of divorced parents not be removed from the State of New Jersey without the consent of the non-custodial parent “unless the court, upon cause shown, shall otherwise order” N.J.S.A. 9:2-2. The rationale behind this anti-removal statute is obvious— the preservation and fostering of the non-custodial parent and child’s relationship.
However, over the years, case law, which has interpreted the standards of N.J.S.A. 9:2-2, has decreased the burden placed on custodial parents making it easier for them to relocate with the children.
This case law more recently evolves with the case of D’Onfrio v. D’Onifrio, 144 N.J. Super. 200 (Ch. Div. 1976), where a trial court held that the standard to obtain permission to relocate under N.J.S.A. 9:2-2 occurs where the custodial parent can demonstrate that a “real advantage to herself and the children” will result from them moving to a “place so geographically distant as to render weekly visitation impossible, and then the Court must weigh a number of determinative factors to accommodate the compelling interests of all family members.” Id. at 206.
Our Supreme Court, in the case of Cooper v. Cooper, 99 N.J. 42 (1984) clarified the D’Onfrio’s standard. It defined the term “cause”, set forth in N.J.S.A. 9:2-2, as placing the burden upon the custodial parent to demonstrate that the move will create a “real advantage” to him/her and that the move will “not be contrary to the best interests of the children.” Id. at 56. The Court noted that the more evidence there is that the non-custodial parent’s visitation will be adversely affected by the move, the more of a showing of compelling reasons to move must be made by the custodial parent. Id. at 58.
Only four years later, our Supreme Court, in the case of Holder v. Polanski, 111 N.J. 344 (1988), modified their standard set forth in Cooper, by easing the restrictions on a custodial parent who wants to relocate, to allow the custodial parent to enjoy the same geographic mobility as the non-custodial parent. It eliminated the requirement that the custodial parent must show a “real advantage” to move, and held that “any sincere, good faith reason will suffice.”Id. at 352-353 . The Holder court also eased the “cause” requirement of N.J.S.A. 9:9-2. It held that the focus should not be on whether the children would benefit from the move but whether they would suffer from it. Id. The Holder court established the procedure to be applied in all removal cases; namely, once the court finds that the custodial parent wants to move for a "good faith" reason, it must then consider whether the move will be inimical to the children's best interest or adversely affect the visitation rights of the non-custodial parent. Id.
In determining a “good faith” reason to move, the Holder court held that the custodial parent's motives are relevant, but if the custodial parent is acting in good faith and not to frustrate the non-custodial parent's visitation rights, that will be sufficient. Id. at 353. The Holder court noted that not every change in a visitation schedule will prejudice the non-custodial parent's visitation rights, particularly if the non-custodial parent has not exercised them before the custodial parent seeks to move from the state. It is also noted that maintenance of a reasonable visitation schedule by the non-custodial parent remains a critical concern. However, it recognized that in our mobile society it may be possible to honor the non-custodial's reasonable visitation rights, as well as the custodial parent's right to move. Id.In resolving the tension between a custodial parent's right to move and a non-custodial parent's visitation rights, the issue becomes the best interest of the children. Id. at 353-54.
The Appellate Division, in the case of Murane v. Murane, 229 N.J. Super. 520 (App. Div. 1989), held that the burden of coming forward on the second part of the Holder analysis was on the non-custodial parent to provide evidence that the proposed alternate visitation schedule by the custodial parent “would be impossible or so burdensome as to affect unreasonably and adversely his or her right to preserve his or her relationship with the child.” Id. at 531, citing Cooper, 99 N.J. at 57-8.
In Cerminara v. Cerminara, 286 N.J. Super. 448 (App. Div. the Appellate Division held that if the custodial parent has a “good faith reason” to move absent infringement upon the children’s best interests the move will be permitted, citing Holder, 11 N.J. at 352. The court held that the mere fact that visitation may be more difficult by the proposed move is insufficient to deny the custodial parent’s request to relocate. Id. at 457. The Cerminara reasoned that the personal happiness of the custodial parent affects that parent’s relationship with the children and serves the best interests of the children. Id. at 455. In affirming the trial court’s determination that the custodial parent was permitted to move to Virginia with the parties’ children, the Appellate Division reasoned that the custodial parent’s happiness; greater economic and professional opportunities in Virginia; and the emotional and financial support that she would receive from her parents, who live in Virginia, was in the children’s best interests. Id.
In Horswell v. Horswell, 297 N.J. Super. 94, 103 (App. Div. 1997), the Appellate Division criticized the trial court for not considering the benefits derived from living elsewhere, and for failing to balance the benefits against the adverse effects of the move.
In 1998, our Supreme Court, in the case of Levine v. Bacon, 152 N.J. 436 (1998), held that in determining whether a visitation schedule would be impossible or so burdensome as to affect unreasonably and adversely his/her right to preserve his/ her relationship with the child, the trial court should consider parenting time schedules submitted by both parties; it should examine sua sponte other possible parenting time schedules; and it should consider referring removal issues to mediation.
In Pfeiffer v. Ilson, 318 N.J. Super. 13 (App. Div. 1998), the Appellate Division affirmed the trial court’s holding that the mother may relocate with the children to California over the father’s objection without the necessity of a plenary hearing or the appointment of any experts. The court noted that a plenary hearing is only necessary were a genuine issue of fact exists bearing upon a critical issue such as, interference with a parental right, the existence of a good faith reason to move or the best interests of the children. In this case, the court held that since no genuine issue of fact existed, the trial court properly applied the Holder analysis without a plenary hearing.
Now, in a case that certainly reflects our changing social times, our Supreme Court, yet again, opines the issue of removal of custodial children from the state of their non-custodial parents home. In Baures, the Court makes it clear that the custodial parent’s burden is not an onerous one. A road map is provided to the custodial parent seeking removal - present a “good faith “ reason to move – setting forth a parenting proposal for the non-custodial parent. Id. Once this burden has been met, the burden shifts to the non-custodial parent, who must produce evidence opposing the move as either not in good faith or inimical to the child’s best interests Id. at 119. The court noted that where visitation is the issue, the non-custodial parent must produce evidence that the visitation change will negatively affect the child. Merely showing that the visitation will change will not suffice. Id. The court also noted that if the non-custodial parent fails to exercise visitation on a regular or consistent basis, then he or she will not prevail in preventing the custodial parent from relocating, since he or she will not be able to show that a particularized harm will occur from the removal. Id. at 120.
After both parties have gone forward, the Baures court instructs that the trial court to then apply the following twelve factors, where applicable, in assessing whether to order removal:
The reasons given for the move;
The reasons given for opposition;
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;
Whether the child will receive educational, health and leisure opportunities at least equal to what is available here;
Any special needs or talents of the child that require accommodation and whether such accommodation or its equivalent is available in the new location;
Whether a visitation and communication schedule can be developed that will allow the non-custodial parent to maintain a full and continuous relationship with the child;
The likelihood that the custodial parent will continue to foster the child’s relationship with the non-custodial parent;
The effect the move on extended family relationships here and in the new location; If the child is of age, his or her preference;
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;
Whether the non-custodial parent has the ability to relocate; and
Any other factor bearing on the child’s interests Id. at 116-117.
The Baures court makes it clear that the growing trend toward permitting a custodial parent to relocate out of state with the children is based upon the world within which we live in 2001- geographic mobility, post-divorce demands such as, remarriage and job opportunities. Social science research, which has uniformly confirmed that the well-being of a children is closely related to the well-being of the custodial parent, and that trouble children post-divorce exist where the custodial parent-child relationship is affected by stress on the custodial parent such as, “loneliness and discouragement.” was also considered by the Court . Id. at 106, citing L.Tessman, Children of Parting Parents 516 (1978), J.Wallerstein & J. Kelly, Surviving the Breakup, 114, 224-225 (1980). Highlighting the need to modify the removal law yet again in 2001, the Baures court commented upon the ability to communicate through computers, technology and competitive long-distance rates have made it substantially easier for people to connect and to connect more frequently.Id.
In cases where the non-custodial parent shares physical custody or exercises the majority of custodial responsibilities, the Baures court held that a removal application essentially constitutes a change in custody application and thus, shall be determined initially by a changed circumstances inquiry followed by a best interest analysis instead of its twelve-prong relocation analysis. Id. at 116. See also, Voit v. Voit, 137 N.J. Super. 103 (Ch. Div. 1998).
Lastly, although the Baures court sought to clarify issues raised or unresolved in its decisions of Cooper and Holder, it ignores the issue of relocation within the state. There is something instinctively wrong in our law, which provides that a custodial parent residing in Bergen County must seek permission from the non-custodial parent to move to New York City, only 10 to 20 miles away, but does not have to seek permission to move to Toms River, New Jersey, which is approximately 80 miles away. The only case known addressing the issue of relocation within the state is the unreported opinion of Knepper v. Knepper, No. 20-4-7842 (Ch. Div. 1996). Here, Judge Diamond, recognizing the inconsistency in our law, applied the balancing test set forth in Holder and held that the custodial parent could not move from Hawthorne to Toms River, because it found the children would suffer from the loss of their father’s frequent contacts (evidence revealed that their father was very involved in their lives; that he was the parent responsible for most of their non-school interaction with family members; and spent quality time nurturing them). Id. at 13-14.
My sense is that case law addressing removal, or relocation of children - out of or within the State - will continue to evolve. It is an area, like so much in our lives, which reflects technology that has made communication and contact frequent - and the reality of a true “ small world” . Of course, the everlasting question is whether or not this can replace a parent’s hug or cheers at a ball game - time will tell!
