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Against that backdrop, we turn to the unreported (non-precedential) Appellate Division in the case of Walsh-Morales v. Morales decided on November 5, 2010.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.