It is well-settled law in New Jersey that prior to the relocation of a child from the this state by a custodial parent on a permanent basis, the parent first must formally request leave from the Court. The court will then examine the move under the factors set forth in the seminal case Baures v. Lewis, which guides the court’s relocation inquiry. In Baures, the Court recognized three now-established legal principals:
1. The relocation standard is based upon a custodial parent’s right to seek happiness and fulfillment, which in turn, benefits the child.
2. Upon relocation, the non-custodial parent’s communication and exposure to the child must be sufficient to sustain that relationship.
3. Finally, the custodial parent must provide proof that the child would not suffer as a result of the move.
While Baures is proverbial gospel when it comes to relocation from the State of New Jersey, an interesting question arose in the Ocean County trial Court in McKinley v. Naters, which was approved for publication (binding opinion) on April 13, 2011. Namely, the McKinley case examined whether the court should grant a contested application for a temporary removal of a child to another state for “extended vacation purposes” prior to a formal relocation hearing under Baures?
The parties in McKinley were divorced on December 10, 2002. They share one child together, whom the Court referred to as H.M. At the time of the divorce, the parties agreed to share residential (physical) custody of H.M.
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.