We have blogged about the issue of relocation (removal) with children after a divorce and the standards that a court must follow.  To see our prior posts, click here, here and here.  The considerations are different if the parties have a truly shared parenting plan or if the non-custodial parent has something less than 50-50.  In the latter instance, the move must be made in good faith and not inimical to the child(rens) best interests (and there are numerous factors set forth in the Baures v. Lewis case that a court must consider. For true shared parenting cases, moves are more difficult because a more stringent best interests analysis is employed. On top of that, it is not enough that the parties designate their arrangement as joint or shared custody, the case law post-Baures made clear that it was the actual parenting time that mattered not what the parties described to to be.

Against that backdrop, we turn to the unreported (non-precedential) Appellate Division in the case of Walsh-Morales v. Morales decided on November 5, 2010.  In this case, post-divorce, the mother sought to re-marry and move to Texas with the parties’ daughter.  The father moved to bar the move, seeking sole custody if the mother moved.  The mother asserted that she was the primary residential parent- the father asserted that there was true shared parenting.

The trial court determined that there was true shared parenting, denied the mother’s request to relocate and directed that the father be the primary parent if the mother moved.  The mother appealed not necessarily as to the law applied, but rather, as to the factual determination that the parties had true shared parenting.

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. 

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