Being a divorced parent and attempting to relocate to another state can be a difficult proposition.  N.J.S.A. 9:2-2 provides that children cannot be removed from the state without the consent of both parents unless the court otherwise orders. The statute’s intent is to preserve the rights of the noncustodial parent and to ensure that children are able to maintain their familial relationship.  Although the statute is stated simply enough, the process of relocating without the consent of the noncustodial parent can be extremely trying as evidenced in a recent published New Jersey Supreme Court decision, Morgan v. Morgan (n/k/a Leary).

In Morgan, the Court reviewed a decision denying a divorced mother’s request to move with her children to another state after the children’s father objected to the relocation.  These parties were married for 13 years and had two children when they divorced in 2005.   The final judgment of divorce incorporated the couple’s Property Settlement Agreement (PSA), which provided for joint legal custody of the children and which indicated that mom would be the party of primary residence. Under the PSA, dad would have the children alternate weekends, every Tuesday evening, every Thursday night until Friday morning, and for two weeks of vacation.

In late 2005, in anticipation of an application by mom to move with the children to Massachusetts, dad filed a motion seeking a re-determination of custody based on “a substantial change in circumstances.” He contended that he should be designated the parent of primary residence because he saw the children more than the PSA provided and was very involved in their school and recreational activities. Mom opposed this motion and filed a cross-motion seeking permission to move with their children to Massachusetts or, alternatively, a plenary hearing. In support of her request to relocate, mom pointed to the fact that Massachusetts is her home state; her entire family resides there; she was by then engaged to a Massachusetts resident; that her marriage would enable her to forego employment and become a “stay-at-home” mother; and that the PSA was not based on her promise to remain in New Jersey.  As a result of these filings, a plenary hearing was held with both sides presenting fact and expert witnesses.

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.

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