Posted on November 15, 2009 by Sandra C. Fava

RELOCATION WITH CHILDREN OUTSIDE OF NJ

I have previously blogged on the standard courts consider when asked whether a custodial parent can relocate outside of New Jersey. 

In our global economy with the economic times being what they are, more and more often I hear people asking if they'll be allowed to move with their children after the divorce.  Recently, the Appellate Court in New Jersey issued an unpublished decision in what appears to have been a hotly contested divorce and relocation trial.  In Hryack v. Hyrack, A-1321-08T4, A-3645-08T2 (two consolidated appeals) decided October 29, 2009, the court gave its thorough analysis of the relocation issue as it pertained to this family.

The first question for a court to answer when faced with an application for relocation outside of New Jersey is whether the physical custodial relationship between the parents is one where one parent is the primary caretaker and the other the secondary caretaker. O'Connor v. O'Connor 349 NJ Super. 381, 385 (App. Div. 2002). If a court does find that the relationship between parties is one where one parent is the primary caretaker and the other the secondary caretaker, the request to relocate must be analyzed further with the standard set forth in the New Jersey Supreme Court case of Baures v. Lewis, 167 N.J. 91 (2001).

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.
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Posted on April 13, 2009 by Sandra C. Fava

NOW THAT I'M DIVORCED- CAN I MOVE?

With technology, the Internet, mobility and information overflow, post divorce individuals often wonder if they can relocate to another state for personal or business related reasons.  The easy answer is sure, so long as there are no children or if your divorce judgment or agreement addresses this issue.

What happens when children are involved and the agreement or divorce judgment does not address the issue of relocation of a custodial parent.  The custodial parent seeking to relocate can file an application with the Court for an Order granting them permission to relocate.  The controlling statutory law is N.J.S.A. 9:2-2 and the precedential case in the state of NJ is Baures v. Lewis, 167 N.J. 91 (2001). 

Recently, the Appellate Division revisited this issue in the unpublished matter of Cathrall n/k/a Greenberg v. Cathrall, IV, decided March 18, 2009, Docket Number A-4085-06T3.  This appeal stemmed from a post judgment order denying relocation, which resulted from a post judgment motion requesting permission to relocate from New Jersey to Florida, filed by the mother/custodial parent. 

The parties were divorced in 2003.  Since their separation, plaintiff/mother had custody of the two minor children born of the marriage.  Defendant/father had supervised parenting time due to admitted issues with alcoholism and had a strained relationship with the minor children.  A year after the divorce was finalized plaintiff/mother remarried.  She was also the owner and operator of a children's clothing store in Stone Harbor, which was operated as a seasonal business during the summer months.  Plaintiff/mother filed an application in early 2004 seeking permission to relocate to Marathon, Florida.  Her desire was to open a similar store in Florida to operate during the winter months and return to NJ during the summer months to operate the store in Stone Harbor.  Defendant/father opposed this application, however by way of an Order dated April 8, 2004, the trial court granted the request.

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.


 
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Posted on September 7, 2008 by Robert A. Epstein

Moves by a Custodial Parent Within the State and Outside of the State - What are the Considerations?

A very common question asked by divorced parents is whether the custodial parent has the right to move with the child either to another state (interstate) or to another location within New Jersey (intrastate).   In light of these questions, a review of the applicable legal standards for interstate and intrastate moves should provide some guidance.

INTERSTATE MOVE

 

N.J.S.A. 9:2-2 is designed to protect the parenting relationship between a child and a noncustodial parent when the custodial parent seeks to move to another state. In light of 9:2-2, the New Jersey Supreme Court in its seminal decision of Baures v. Lewis, 167 N.J. 91 (2001) developed a set of 12 factors to consider when reviewing a custodial parent’s removal application (which have also been applied to an international move).   These factors are:

 

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 that require accommodation and whether such accommodation or its equivalent is available in the new location;

6.       Whether a visitation and communication schedule can be developed that will allow the noncustodial 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 noncustodial 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 noncustodial parent has the ability to relocate; and

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

 

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.
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