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Recently, the Appellate Division revisited this issue in the unpublished matter of Cathrall n/k/a Greenberg v. Cathrall, IV, decided March 18, 2009, Docket Number A-4085-06T3.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.