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Noting that there is no express requirement of employment in the new location, the court went through the relocation factors provided by the Supreme Court in Baures v. Lewis, which apply when considering the request of a primary custodian to relocate (notably, the standard is simply the best interests of the child when the parents have joint residential custody and one parent seeks to relocate with the child).  

The requesting parent must prove that 1) there is a good faith reason for the move, and 2) the proposed move will not be inimical to the child's interests.  Within that standard, the court must analyze the following factors:                               

1.  the reasons given for the move; 

2.  the reasons given for the opposition; 

3.   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; 

4.   whether the child will receive educational, health and leisure opportunities at least equal to what is available here; 

5.    any special needs or talents of the child; 

6.    whether a parenting time schedule and communication schedule can be developed that will allow the non-custodial parent to maintain a full and continuous relationship with the child; 

7.    the likelihood that the custodial parent will continue to foster the child’s relationship with the non-custodial parent if the move is allowed;  

8.    the effect of the move on extended family relationships here and in the new location; 

9.    if the child is of age, his or her preference; 

10.   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; 

11.   whether the non-custodial parent has the ability to relocate; and 

12.   any other factor bearing on the child’s interest. 
 

In addressing the requirement of procuring employment in the new state, the trial court took judicial notice of the economic downturn and rationally provided:

As noted, nowhere on this list is there a specific, mandatory requirement of guaranteed, out-of-state employment before a court can grant a removal application.  For certain, there are many hypothetical factual scenarios where there would be little practical sense in imposing such an absolute pre-condition upon every custodial parent’s ability to move.  For example, if a moving parent (a) has significant financial support from other family members such as parents or a new spouse, or (b) has traditionally been a homemaker with young children and no remarkable work history, or (c) is disabled and out of the labor force, or (d) is independently wealthy, then in such instances there may be no compelling basis to require mandatory employment for such an applicant. 

Even in cases where none of the above scenarios exist, however, there is still a  fundamental problem with imposing a requirement upon every moving party to first demonstrate a guaranteed offer of employment in the new state. As the parties in this case have learned firsthand, there is often an unfortunate time gap of many months between the date a custodial parent files a motion for relocation and the date a court can actually adjudicate the matter with finality.  Because of this gap, it is often highly impractical for a custodial parent to obtain a concrete job offer from an out-of-state employer when he or she does not even know if and when court approved relocation may occur. 
 

Ultimately, the trial court created a somewhat new standard by which to analyze the financial impact of a primary custodian's relocation, even though, at the end of the day, the standard falls within the broad standards of the factors enunciated above.  The court provided:

The most practical and relevant inquiry is not whether the moving parent has a guaranteed job, but rather  whether  she has a reasonable plan for providing the child in her care with an economically stable home in the  new state.  In such an analysis, a party’s employability, and work history are relevant to the overall financial reasonableness of the custodial parent’s relocation plan.  As set forth in Baures, supra, 167 N.J. at 117, the final factor for consideration is “any other factor bearing on the child’s interest.”  This extremely broad language permits a court of equity to exercise its discretion to consider points and issues beyond those expressly listed in Baures. 

Interestingly, though, was the court's granting of mom's relocation application based on what appeared to be a very uncertain degree of financial stability:

As noted, defendant does not have guaranteed employment in North Carolina.  However,  the court finds that she is reasonably likely to obtain suitable employment in North Carolina  and create a financially responsible home life there if given a reasonable opportunity to do so.  The court reaches this conclusion for the following reasons:   First, she has a longtime history of steady, stable employment in New Jersey, reflecting positively upon her financial responsibility.  Second, she  has provided evidence that during the course of this case, she sought and was able to obtain at least one offer of  reasonable employment in North Carolina, which would have provided her with a higher starting salary than she presently makes at her New Jersey job.  Third, she has marketable management skills.  Fourth, she presents as an intelligent and articulate individual who is focused and who has a  record of responsibly caring for the child in her court ordered primary care, both financially and otherwise.

The court then noted, however, that mom had a reasonable financial plan because her current husband had a successful career as a department store chain manager with potential employment opportunities in another state; mom had close relatives living in North Carolina who could provide financial assistance and with whom the child had spent a substantial amount of time and ; and, a bit curiously, mom planned on purchasing a home.  As to the last point, it appears that even the thought of financial stability, rather than the potential inability to fulfill that plan, was enough for the court.

Ultimately, the financial situation awaiting the parent and child seeking relocation will always be considered by the court.  "Ifs" "whens" and "maybes" of what that financial situation may be at some point after relocation, though, is a difficult consideration since, as the trial court provided, there is no "crystal ball" to show what will happen.  

_______________________________

RobertEpstein is an associate in Fox Rothschild LLP's Family Law Practice Group. Robert practices in the firm's Roseland, New Jersey office and can be reached at (973) 994-7526, or repstein@foxrothschild.com.    

In May of 2010, the mother petitioned the Court, seeking to relocate to Florida with her present husband and H.M. for employment reasons. H.M. was fifteen years old at the time of the mother’s application. It was also advanced that H.M. would have greater educational opportunities in Florida and would enjoy life there better. The husband in turn filed an application opposing the move, and seeking sole residential custody of H.M.

The Court set the matter down for a final hearing on the subject of relocation approximately three months later, in August of 2010. In the interim, the parties were to engage in discovery and undergo a custody evaluation with a court-appointed psychologist.

Pending the hearing, and in June of 2010, the wife filed an application to temporarily remove H.M. to Florida for a four-week vacation. The Florida visit was intended for vacation purposes and so that H.M. could “get a feel for” their new neighborhood. The husband opposed the vacation. Both parties alleged that the other was attempting to gain a leg- up in the upcoming hearing, with the husband alleging that the wife was attempting to monopolize her time with the child in Florida, and the wife alleging that the husband was attempting to prohibit the child from spending time with her in Florida so he would be less inclined to want to relocate there. After considering the merits of both parties’ applications, the Court decided to “split the baby” and grant the wife’s application for a two-week, extended vacation to Florida (as opposed to the four weeks, originally requested).The Court reasoned that it was logical and appropriate for H.M. to have a reasonable opportunity to experience life in Florida as well prior to trial. This is because, based upon his age, H.M. would be interviewed by the judge (not in open court) as to where he preferred to live, and should have the chance to make a well-formulated decision in that regard that is based on more than speculation. This reasoning was based upon the statutory mandate governing removal of children, N.J.S.A. 9:2-2 which provides:
 

when the Superior Court has jurisdiction over the custody of a child of divorced parents,
and such child is a native of New Jersey, or has resided five years within its limits, the child shall not be removed out of its jurisdiction against the child’s own consent, if of suitable age to signify same and/or without court order.

Kavrikis v. Kavrikis, found that “a suitable age” as articulated in the statute is fourteen years, as a chronological starting point. The court further found that even if a child over fourteen consents to relocation, issues before the court may include an analysis of whether such consent was informed. As H.M. was over fourteen years old, the court deemed input by H.M. appropriate to the removal application, and further expressed that experiencing life in Florida would be relevant to the issue of whether such consent was in fact informed.

However, as mentioned, the court did opt to limit H.M.’s time in Florida to two weeks, as opposed to the four week period originally requested by the mother. This was because the court found that it was inappropriate to permit either parent to monopolize all of the
child’s time prior to trial, especially now that it was only four weeks away.

Finally, in reaching its decision, the court considered other factors as well, including the fact that school was not in session during the time of the proposed vacation and thus, H.M.’s schooling would not be disrupted, and the fact that there was no evidence that either party was motivated by a desire to interfere with the other’s parenting time.

The court granted Mom’s request, but modified the time from 4 weeks to 2 weeks, also providing Dad with two weeks of such “extended vacation” in New Jersey.  The child’s age in this case – 15 years old – was of great import to the court in its decision, as well as the child’s capacity to reason.  The court found that, under every possible legal analysis in removal applications (including the Baures factors, factors for a change of custody analysis under N.J.S.A. 9:2-4, and N.J.S.A. 9:2-2), the child’s expressed preference was relevant to the court’s decision.   The court noted that none of the laws or cases cited prevent a child’s temporary removal from the jurisdiction for “legitimate purposes, particularly under court order.” 

As a result, the court found that its crafted resolution provided the child with a sensible, “reasonable opportunity” to experience life in both states under the care of each party prior to trial, rather than base any expressed preference on nothing more than speculation.  Since the child was 15, the court determined that he could inform the court of his preference during an “in camera” (in chambers) interview with the trial judge pursuant to Rule 5:8-6 of New Jersey’s Rules of Court.   The court also found its decision appropriate because it would not interfere with the child’s present schooling; Mom had no history of violating court orders or otherwise demonstrating a flight risk; and, by its resolution, Dad was provided with an “equitable opportunity” for the child to take an “extended vacation” in New Jersey as well during the pre-trial phase. 

Thus, the court’s decision was clearly fact-specific.  Had the situation involved a younger child, for instance, the court might have ruled differently.

In 2006, the trial judge blocked the move, declaring that the mother did not have a valid reason to go and that the children would be harmed thereby.  In 2007, both parties appealed and in 2010 the Appellate Division reversed the denial of relocation because the trial court’s conclusions were not supported by the record, permitted relocation, and remanded solely for proceedings to expedite the move.  Dad appealed and in 2010 the Supreme Court agreed to hear the case. 

As a result, the Supreme Court set forth the following standard for courts to follow.  As an initial step, a trial court must examine the parenting arrangement.  If the matter is actually an application for a change of custody--for example, if the children rotate between homes with each parent assuming full parental responsibility half of the time--the relocation decision is based on the child’s best interest.  In contrast, if the noncustodial parent sees the children once or twice a week, the application is a removal motion triggering the Baures test. The Baures test is a two-part test: the movant must prove a good faith reason for the move and that the child will not suffer from it.  The Court in Baures also listed twelve factors that are relevant in deciding whether the two-part test was met, including the reasons for the move and for opposition to the move; the health, education, and other needs of the child and whether those needs can be equally met in the new location; whether visitation and communication schedules can be developed to permit a full and continuous relationship with the noncustodial parent; the effect of the move on extended family relationships in both locations; the likelihood that the custodial parent will continue to foster the non-custodial parent’s relationship; and whether the noncustodial parent has the ability to relocate. T he Court in Baures also made clear that a mere change in parenting time would not be sufficient to bar a move.

Once the parties’ status is determined and the case is denominated as one involving removal, the burden of production rests on the movant to establish a prima facie showing on the prongs of good faith and harm to the child, which typically requires a “visitation proposal.”  If the moving party meets that burden, the noncustodial parent must produce evidence opposing the move as either not in good faith or inimical to the child’s interest.  Once that evidence is produced, the custodial parent may adduce further evidence or may rest.  Either way, the ultimate burden of proving both good faith and that the children will not be harmed remains with the party seeking to relocate.

In Morgan, the matter was a removal action because dad did not make out a case of changed circumstances and mom and dad did not have a de facto shared custody arrangement.  Dad's claim that he saw the children more than the PSA provided, failed to establish shared physical custody--a status that considers whether both parents share tasks such as meals, bathing, purchasing and caring for clothes, disciplining, and arranging social interactions, daycare, babysitting, and education.   As a result, the Court affirmed the Appellate Division’s conclusion that the trial judge erred by failing to apply the good faith Baures standard, which was satisfied in this case, and by concluding that mom’s “emotional instability” was supported by admissible evidence in the record.  Although the Appellate Division remanded the matter only for a new visitation schedule, the Court held that a full remand is in order because four years have elapsed since the evidence was adduced before the trial court, mom’s engagement is off and her fiancé will not be supporting her to permit her to become a stay-at-home mother, the children are now twelve and nine and the older child has the legal right to express a preference regarding the move, and dad has remarried and has a new child.  At the remand hearing, the Court ordered that the Baures factors that are relevant should be addressed, and an updated psychologist evaluation should be ordered if appropriate.

The Appellate Division framed the issue as follows:

The labels used in a divorce decree to describe the custodial arrangement are not determinative. O'Connor, supra, 349 N.J. Super. at 399-400; Mamolen, supra, 346 N.J. Super. at 499; see Baures, supra, 167 N.J. at 116 (referring to both "de jure and de facto" sharing of physical custody). Time spent with the child is important to the extent that the parent assumes responsibility for duties performed by a primary caretaker during that time. O'Connor, supra, 349 N.J. Super. at 385. The duties that are the hallmarks of primary caretaking include planning for and providing the child's meals, grooming,
clothing, medical care, activities, alternate caregivers, bedtime, nighttime and morning care, discipline and education. See id. at 399 (discussing and quoting Pascale v. Pascale, 140 N.J. 583, 598-99 (1995), and the cases relied upon therein).

Thus, to characterize the parties' custodial arrangements, this court has looked to the temporal division of responsibility and the nature of the duties that are shared. A true joint physical parent is more than just a babysitter for the other — that is a subordinate "rather than [a] joint, caretaking role." Barblock v. Barblock, 383 N.J. Super. 114, 125 (App. Div.), certif. denied, 187 N.J. 81 (2006). In assessing a parent's time spent with his or her child, we take account of the unique circumstances of each family. In some families, weekdays may be more significant than weekend nights, because that is when parents are involved with school, homework and medical appointments. In other families, time spent together on weekends may be critical because both parents work outside the home, have others assist during the week with after-school time and reserve family chores and projects for the weekend. In sum, consideration of the facts of the particular case is critical to
determining whether physical custody is truly shared.

Pursuant to the parties' divorce agreement, the schedule had the daughter spending 42.8% of her
nights in the father's care as well as the daytime hours on Saturdays during the weekends she spent with the mother. That said, in the 4 years post-divorce, the father had overnight parenting time of approximately 36%, 35%, 38% and 42%.  However, the trial Judge noted that with the Saturday day time during the mother's weekends, the father's total time was 45% and 48% in the last two years. Based on the frequency with which the father assumed the responsibility for his daughter's food, clothing,
morning and nighttime care, education and activities, the trial judge concluded that these parents truly shared physical custody.  The Appellate Division found that there was enough evidence in the record to support this conclusion.  The Appellate Division judges also noted that there was perhaps enough evidence to support the contrary conclusion - the for appellate review, as long as there is enough evidence in the record to support the decision, it cannot be overturned for that reason.  In short, the trial judge looked at the entire roles and activities of the parent with the child, not just the number of hours.

This case is interesting for a few reasons. First, the parties themselves designated the mother as the parent of primary residence and at the time of the divorce, recognized that it was not true shared parenting.  Further, by looking at the post-divorce conduct, they did not share parenting in terms of time spent with the child.  A cynic might think that the father's time began increasing in the last year or two once the possibility of relocation came about.  There is also law that defines the parent of primary residence as the party with whom the child spends more than 50% of the overnights.  Thus, it would appear by both the labels that the parties put on this and the actual time spent, this was not true shared parenting.  Even with child support calculations, while there is a shared parenting worksheet for parenting time between 28% and 49% of the overnights, for "true shared" parenting, i.e. 50-50 parenting, there is a different calculation used.  Based on this case, because the time is close but not quite 50-50, could a parent argue that the 50-50 support analysis be used so that they could pay less divorce.

In this case at least, the axiom that close only counts in horseshoes and hand grenades did not hold true. Rather, close was close enough to use the 50-50 standard.  Again, because this case was not reported, it is not precedential and need not be followed by other courts.  But it is certainly an interesting analysis of the law. 

Under the Baures case, the parent that wants to relocate with the children must provide evidence that shows that there is 1) a good faith reason for the move and 2) that the move will not be inimical to the children's best interest.  They should also propose a visitation schedule.

In other words, the parent seeking to move with the children must prove to the court that the request to move is being made in good faith and not, for example, to spite the other parent or thwart their parenting time with the children.  Also, the parent must show that moving with the children outside of NJ will not be contrary to the children's best interest.

If the parent who wishes to relocate can meet these two burdens of proof, then it becomes the other parent's responsibility to provide evidence opposing the move because its being done not in good faith or it is contrary to the children's best interest.

To assist courts, Baures provides 12 factors to serve as guide posts when assessing the issue.  They are :

1. Reasons given for the move.

 2. Reasons given for opposition.

3. Past history of dealings between the parties insofar as it bears on reasons advanced by both parties for supporting and opposing the move.

4. Whether child will receive educational, health and leisure opportunities at least equal to what is available here.

5. Any special needs or talents of the child that require accommodation.

6. 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.

7. Likelihood that the custodial parent will continue to foster child's relationship with the non-custodial parent if the move is allowed.

8. The effect of the move on extended family relationships here and in the new location.

9. The child's preference.

10. Whether the child is entering his senior year in high school.

11. Whether the non-custodial parent has the ability to relocate.

12. Any other factor.

In the recently decided Appellate Division decision of Hyrack, the Court reversed and remanded to the trial court because there was not a thorough and detailed parenting plan addressing how the non-custodial parent would have sufficient time and access to the children so that his relationship with them was not impaired or injured based upon their move across country to California.

One of the lessons that Baures taught was the importance of both parties' efforts to create an alternative visitation plan that could bridge the physical separation between the noncustodial parent and the children.  Ways such as email, Internet cameras, visitation during school breaks, holidays, vacations and phone contact must all be considered.  What also must be considered is the cost of such a visitation plan.  What the court should focus on is whether the communication and visitation is detailed and sufficient enough to maintain and nurture the connection between the noncustodial parent and children.  An important consideration to be made is what the quality of the relationship will be between the children and the noncustodial parent.

Any parent seeking relocation must examine these factors carefully and set forth a detailed plan for visitation and parenting time that can be executed and that can maintain a quality in the relationship between the children and the other parent.

Plaintiff/mother relocated with the children to Marathon, Florida and remained there until the end of the school year in May. She then returned to NJ but did not return to Florida at the end of the summer. She contended that she didn't return to Florida because defendant's mother sued her for a claimed indebtedness, for which she filed a third party complaint against defendant; her home in Florida was destroyed by a hurricane; and one of the children contracted an eating disorder for which he was receiving treatment here in NJ.

Two years later, plaintiff/mother decided to once again return to Florida, however this time to Jupiter. In the interim, the children were seeing their father, often unsupervised and spent most of their time during the summer months living with him. When plaintiff' announced her intention to move to Florida, defendant opposed the relocation. Plaintiff asserted that she did not need his permission because of the prior Court Order. She didn't seek further court permission to move, she didn't inform defendant of her move, and when he realized she had left with the children, she obstructed his efforts to determine their whereabouts.

In September 2006, defendant filed an emergent application seeking the return of the children. The immediate relief was granted, however plaintiff did not return until December 25, 2006. Thereafter, at a hearing, plaintiff was ordered to remain the parent of primary residence, the children to remain in NJ and supervised parenting time to continue.

The trial judge deemed plaintiff's relocation a renewal of her 2004 application, however this application was viewed differently as it was to a new city in Florida, thereby requiring a new hearing before relocation could again be allowed. At a hearing, plaintiff went through and provided information by way of testimony and evidence of the Baures factors a court must consider when addressing the issue of relocation:

1. Reasons given for the move.
 

2. Reasons given for opposition.

3. Past history of dealings between the parties insofar as it bears on reasons advanced by both parties for supporting and opposing the move.

4. Whether child will receive educational, health and leisure opportunities at least equal to what is available here.

5. Any special needs or talents of the child that require accommodation.

6. 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.

7. Likelihood that the custodial parent will continue to foster child's relationship with the non-custodial parent if the move is allowed.

8. The effect of the move on extended family relationships here and in the new location.

9. The child's preference.

10. Whether the child is entering his senior year in high school.

11. Whether the non-custodial parent has the ability to relocate.

12. Any other factor.

In issuing its decision, the trial court reviewed each of the factors and found that plaintiff had not met her burden, specifically to the first factor, thus her application was denied. In addition, the court removed the supervision requirement from defendant's parenting time From that Order, this appeal ensued. Part of the appeal relating to the unsupervised parenting time was made emergent and thus heard separately from the relocation issue.

Specifically there was concern that given her conduct, that the plaintiff would not foster a relationship between the children and defendant.  Her taking the children to Florida without notice to the father and similar conduct was the basis for this finding.

An interesting twist in this matter is that while the appeal was pending, issues and problems between defendant and the children became increasingly worse. The Appellate Court remanded the issue of the supervision requirement for further testimony. During the remanded proceedings, after interviewing the children, the trial court found that the increased unsupervised visitation was not going well, to say the least. The court then entered an Order allowing parenting time only if initiated by the children or in an appropriate therapeutic setting. Defendant did not cross appeal from that Order and the remainder of the issues proceeded in ordinary course.

When addressing the issue of the denial of plaintiff's renewed application for relocation, the Appellate Court noted that "relocation applications are extremely fact sensitive".  Deference is given to the trial judge who sits as the factfinder and carefully evaluates evidence to make factual findings within the Baures factors. The Court held that the trial court's findings were supported by the record evidence and his ultimate conclusion in then denying the application was sound. However, the record does not end there. In light of the proceedings and additional evidence and testimony that surfaced as a result of the emergent remand addressing the removal of the supervision requirement, the Court held that a "significant change in circumstances involving the relationship among the affected parties" had materialized.  Therefore, because of this change in events, which surfaced after the trial court denied plaintiff's removal application, the Appellate Court held that the relocation must also be remanded to the trial court for reconsideration of plaintiff's application.

The Court in Baures noted that a mere change in the noncustodial parent’s visitation, such as a reduction, is not reason enough alone to deny a custodial parent’s removal application. Rather, it is simply one factor for a court to consider when determining if the custodial parent fulfilled her burden of establishing a good faith reason for the move and that the move will not be inimical to the child’s interests. The custodial parent can rely on evidence including, but not limited to, an extended family in the new location that can help raise the child; greater educational and health opportunities; and a visitation schedule enabling the noncustodial parent to maintain his parenting relationship. It is then up to the noncustodial parent to prove that the custodial parent is acting in bad faith or against the child’s interests.  

Important here is that these factors and this standard do not apply if the noncustodial parent shares physical custody or exercises a majority of custodial responsibilities due to the custodial parent’s incapacity or by agreement between the parties. The Court concluded that a custodial parent’s wish to move interstate then becomes a motion for a change in custody, which is decided following a “changed circumstances” and “best interests” analysis. 

INTRASTATE MOVE

By contrast to an interstate move, an intrastate move is within the discretion of the custodial parent.  The New Jersey Appellate Division has held that a decision to move intrastate does not require court approval because it does not fall within the confines of N.J.S.A. 9:2-2. Rather, such a move may call for a modification of an existing custodial and parenting-time arrangement only if it creates a “substantial change of circumstances” injurious to the child’s best interests or her relationship with the noncustodial parent. A court will determine whether a modification is required by reviewing the evidence in light of the 12 Baures factors listed above.  

While our judicial system recognizes that it is unrealistic to keep divorced parents and children from moving elsewhere to better their lives, there are ways to ease the blow of a custodial parent’s move away from the noncustodial parent either interstate or intrastate. One way is to develop a parenting plan that allows the noncustodial parent to enjoy time with the child substantially similar to that which he experienced with the child before the move. Developing such a plan will ease tensions and maintain relationships between the parents and the child, which only benefits the child in the long run.