Removal of Children from New Jersey
- Law Lessons from
YOUNG v. LEE (App. Div., A-5283-04T4, January 19, 2006, not approved for publication):
N.J.S.A. 9:2-2 does not permit the removal of a
child who is a native of this State without
the consent of both parents or court order. When the
removal can be accomplished only by court order, the standard to
be employed in determining the removal issue depends upon the
custodial arrangement existing at the time that removal is
sought. In instances in which the parent seeking removal
already has residential custody of the child, the issue is
determined under standards established in Baures v. Lewis, 167
N.J. 91 (2001) that permit a consideration of the interests of
the custodial parent as well as the child. Id. at 115.
However, in a case in which "the noncustodial
parent shares physical custody either de facto or de jure or
exercises the bulk of custodial responsibilities . . . by formal
or informal agreement," the analysis employed in Baures is
"entirely inapplicable." Id. at 116. In these circumstances,
"the removal application effectively constitutes a motion for a
change in custody and will be governed initially by a changed
circumstances inquiry and ultimately by a simple best interests
analysis." Ibid.; see also O'Connor v. O'Connor, 349 N.J.
Super. 381, 385 (App. Div. 2002); Chen v. Heller, 334 N.J.
Super. 361, 380-82 (App. Div. 2000); N.J.S.A. 9:2-4c.
- Law Lessons from SEGARRA v. SOTO (App. Div., A-3672-04T2, January 27, 2006, not approved for publication):
The applicable legal standards for the relocation of children
by their primary custodial parent are clearly set forth in Baures
v. Lewis, 167 N.J. at 97. As a threshold matter, Baures,
167 N.J. at 116, requires the court to determine that the
parent seeking to relocate is indeed the primary custodian, and
that the case does not involve a situation of equivalent “shared
parenting.” Cf. O‘Connor v. O'Connor, 349 N.J. Super. 381, 399-400
(App. Div. 2002) (citing Mamolen v. Mamolen, 345 N.J. Super. 493
(App. Div. 2002)).
As Baures teaches, however, primary custody alone does not
automatically carry with it the right to remove children from the
State. The Supreme Court in Baures fashioned a detailed legal test,
a “hybrid scheme” that recognizes the identity of the interests of
the custodial parent of the child and accords particular respect to
the custodial parent’s right to seek happiness and fulfillment. At
the same time, the Baures test emphasizes the importance of the
noncustodial parent’s relationship with the child by guaranteeing
regular communication and contact of a nature and quality to
sustain the relationship. Baures, 167 N.J. at 97.
More specifically, the moving party under Baures bears the
two-pronged burden of providing prima facie proof that there (1) is
a good faith reason for the move, and (2) that the move will not be
inimical to child’s interests. Ibid. The movant should include
within that prima facie case a visitation proposal. Id. at 118.
However, in Cooper v. Cooper, 99 N.J. 42, 57-58 (1984), the Supreme
Court previously noted that it was not necessary to maintain the
same pre-removal visitation schedule, where a reasonable
alternative visitation scheme is available and the advantages of
the move are substantial.
Once a prima facie case is established under Baures, the
burden is upon the noncustodial parent to produce evidence
opposing the move, as being either not in good faith or inimical to
the child’s interests. Baures, 167 N.J. at 119. Where
visitation is an issue, the burden is on the noncustodial parent to
produce evidence, not just that visitation will change, but that
such a change will negatively affect the child. Holder v.
Polanski, 111 N.J. 344, 352 (1998).
As articulated in Baures, a court should look to the following
factors relevant to the movant’s burden of proving good faith and
proving that the move will not be inimical to the child’s
interests:
(1) the reasons given for the move;
(2) the reasons given for the opposition;
(3) the past history of dealings between the
parties insofar as it bears on the reasons
advanced by both parties for supporting and
opposing the move;
(4) whether the 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 and whether such
accommodation or its equivalent is available
in the new location;
(6) whether a visitation and communication
schedule can be developed that will allow the
noncustodial parent to maintain a full and
continuous relationship with the child;
(7) the likelihood that the custodial parent
will continue to foster the child’s
relationship with the noncustodial parent if
the move is allowed;
(8) the effect of the move on extended family
relationships here and in the new location;
(9) if the child is of age, his or her
preference;
(10) whether the child is entering his or her
senior year in high school at which point he
or she should generally not be moved until
graduation without his or her consent;
(11) whether the noncustodial parent has the
ability to relocate;
(12) any other factor bearing on the child’s
interest.
[Baures, 167 N.J. at 116-17.]
Additionally, Baures emphasizes the importance of mutual efforts to
develop an alternative visitation scheme that can bridge the
physical divide between the noncustodial parent and the child. Id.
- Law Lessons from
BARBLOCK v. BARBLOCK (APP. DIV.,
DOCKET NO. A-3648-04T1, APPROVED FOR PUBLICATION,
February 10, 2006):
N.J.S.A. 9:2-2 provides that a child who
was born in this State or who has resided within its limits for
five years may not be relocated by a parent from the State of
New Jersey, absent the consent of both parents or an order from
the court finding sufficient cause to permit such a move.
Upon finding that the removal statute applies, the court
must then determine the extant status of custody
of the parties' children. If the situation is such that one
parent serves as the primary caretaker, then that custodial
parent's request to relocate the children is governed by the
two-part test of Baures v. Lewis, 167 N.J. 91 (2001). Baures
requires the removal to be granted where the proofs demonstrate
that (1) there is a good faith reason for the move and (2) that
the move will not be inimical to children's best interests. Id.
at 118.
If, conversely, the situation is a rare de facto "shared
parenting" arrangement, one in which each parent essentially
performs an equal caretaking role, then the removal application
must be analyzed under the stricter change-of-custody test of
O'Connor v. O'Connor, 349 N.J. Super. 381, 399-400 (App. Div.
2002). The O'Connor standard hinges solely upon an analysis of
the best interests of the children, regardless of the
applicant's good faith motivation to relocate. In such
instances, "the party seeking the change in the custodial
relationship must demonstrate that the best interests of the child[ren] would be better served by residential custody being
vested primarily with the relocating parent." Id. at 398; see
also Chen v. Heller, 334 N.J. Super. 361, 380-82 (App. Div.
2000).
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