By Robert T. Corcoran, Esq.
N.J.S.A. 9:2-2 governs the removal of children of divorced parents from the State of New Jersey. The case law over the last 13 years has defined the factors which guide the courts in deciding removal cases, and includes two comprehensive opinions by the New Jersey Supreme Court. Most recently, the Appellate Division further defined the criteria, bringing into greater focus the factor of paramount concern, the best interests of the children.
The American Academy of Matrimonial Lawyers, in recognition of the increasing frequency and complexity of relocation cases and in an effort to provide guidance to those jurisdictions desiring a statutory solution to the relocation issue, enacted the Proposed Model Relocation Act on March 9, 1997 to serve as a template to state legislators. Its statutory scheme expressly sets out the factors to be considered by any court deciding a relocation case.
The purpose of this article is to review the background and current status of the New Jersey law on removal, and to compare and contrast it with the Model Act to gain perspective on how the Model Act may contribute to New Jersey's treatment of this vital issue. It is not, however, meant to be an exhaustive comparison of every facet of either New Jersey law or the Model Act.
New Jersey has taken a progressive approach to this area of the law by attempting to define and re-define the factors guiding the courts in removal cases. When an issue is extremely fact-sensitive, as is the removal issue, it is crucial that the legal criteria be defined as precisely as possible to obtain maximum consistency in outcome, and to provide litigants with an idea of where they stand.
Initially, the courts seemed concerned primarily with the rights of the non-custodial parent. The custodial parent seeking to relocate with the child was required to demonstrate, as a threshold requirement, that there was a “real advantage to that parent in the move.” Cooper v. Cooper 99 N.J. 42, 56 (1984). He advantage was required to be “one based on a sincere and genuine desire of the custodial parent to move and a sensible good faith reason for the move.” Id. The custodial parent was also required to establish that the move was not inimical to the best interests of the children, i.e. that no detriment to the children would result from the move. See id.
Only after these threshold requirements were met did the court consider visitation and other factors in what amounted to a three-part test: First, the custodial parent was required to show that the quality of life for both the custodial parent and the children would be maintained or improved. See id. at 56-57. Second, the custodial parent was required to prove the integrity of the motives for the move, and the non-custodial parent's motives for restraining the move were also examined. See id. at 57. Third, the court was required to consider whether a realistic and reasonable alternative visitation schedule could be reached if the move were allowed. See id. The court defined “realistic and reasonable” as requiring an “adequate basis for preserving and fostering a child's relationship with the non-custodial parent if the removal [were] allowed.” Id. Because any post-move schedule was clearly an alternative proposal, a good faith relocation was not to be denied solely because a non-custodial parent previously had weekly visitation. See id. Hence the non-custodial parent had the burden of coming forward with proof that a proposed alternative visitation schedule would be inimical to the continuing parent-child relationship. See id. at 57-58. The court's decision would be based upon a balancing of the evidence relevant to these three factors, after the threshold requirements were met. See id. at 58.
Only four years later, the New Jersey Supreme Court eliminated its requirement that the custodial parent show a real advantage to the move and focused more upon the right of the custodial parent to move and the interests of the children. See Holder v. Polanski, 111 N.J. 344, 349 (1988). A custodial parent could move with the children of the marriage to another state “as long as the move [did] not interfere with the best interests of the children or the visitation rights of the non-custodial parent.” Id. The court reasoned that the non-custodial parent, who is usually the father, had the right to move elsewhere for virtually any reason, and found it unfair to deny a custodial mother a move to another state “as men and women reach parity.” Id. The custodial parent merely had to establish a “good faith reason” for the move, such as a desire to live closer to relatives and make a fresh start, see id. at 352-353, and absent an adverse effect on the non-custodial parent's visitation rights or other aspects of a child's best interests, the custodial parent could enjoy the same freedom of movement as the non-custodial parent. Indeed, a mere change in visitation would not be deemed adverse to the children's best interests. See id. at 353. With the Holder decision, the focus was also changed from the benefits accruing by virtue of the move, to a consideration of whether the children would in fact suffer from it. As long as the children would not suffer and as long as a reasonable visitation schedule could be maintained, the right of a custodial parent to move was seemingly liberalized.
The Appellate Division further whittled away at the non-custodial parent's rights only two years later in the case of Winer v. Winer, 241 N.J. Super. 510, 520 (App. Div. 1990), holding that even a finding that a relocation would adversely affect a non-custodial parent's visitation rights and thus have an adverse effect on the children would not be sufficient to deny a relocation request by a custodial parent. The non-custodial parent had the burden of producing evidence that an alternative visitation schedule was not suitable, with the court required to make findings regarding the suitability of an alternative visitation schedule if the relocation were to occur. See id.
The Judiciary's position post Holder, that a custodial parent should have as much of a right to move as a non-custodial parent, is evident in the case of Rampolla v. Rampolla, 269 N.J. Super. 300 (App. Div. 1993). In this case, the court held that the non-custodial parent's ability to relocate as a method of ensuring the continued operation of their shared custody arrangement should be considered upon the custodial parent's application for removal – extending the gender parity reasoning in Holder — and requiring the courts to consider an alternative to the all or nothing outcome. “Instead of the status quo (regular contact or shared custody) being pitted against the move, the possibility of replicating the status quo in another location becomes a viable alternative with concomitant benefit to all parties.” Id. at 308. More recently, the Appellate Division has closely linked the best interests of the children with the personal happiness of the custodial parent. See Cerminara v. Cerminara, 286 N.J. Super. 448, 455 (App. Div. 1996), certif. den., 144 N.J. 376 (1996). This link recognizes the opinions of mental health professionals since from a psychological viewpoint, the children's best interests are very much dependent upon the happiness of the person with whom they primarily reside. As long as the non-custodial parent can maintain substantial contact with the children (even if visitation is more difficult by virtue of such a move), the move will not be denied in these circumstances. See id.
The Appellate Division in 1997 appears to have gone even one step further by indicating that one of the considerations in balancing the competing interests is the impact of the children's separation from extended family living out of state. See Horswell v. Horswell, 297 N.J. Super. 94, 104 (App. Div. 1997). Whether future courts take this lead and formally expand the removal doctrine in this direction should be carefully monitored.
Indeed, there have been very few cases in New Jersey to deny the custodial parent's application for removal. Where, however, the facts demonstrate that the alternative visitation schedule will truly have an adverse impact upon the relationship between the children and non-custodial parent so as to be harmful to the children, the court will deny the move. See Levine v. Bacon, 297 N.J. Super. 224 (App. Div. 1997); see also McMahon v. McMahon, 256 N.J. Super. 524 (Ch. Div. 1991). Such a situation exists where there is an indisputably close bond between the children and the non-custodial parent based upon frequent and regular contact with the children, as well as a close relationship with extended family of the non-custodian. The detailed attention to the facts by the courts considering the impact of an alternative visitation schedule in cases where removal is denied demonstrates the heavy burden upon the non-custodial parent. Only where the facts overwhelmingly demonstrate that the visitation proposed could not replace the current close relationship, built upon regular and frequent contact, and the change will be harmful to the children, will the court deny the move. See Levine, 297 N.J. Super. at 243-247; see also McMahon, 256 N.J. Super. at 533-537.
The dissenting opinion in Levine, however, argues in favor of a vigorous adherence to the Winer case by requiring every effort to be made to exhaust all possibilities for finding a suitable alternative visitation schedule, even ones that are judicially created. See id. at 249-253. In this sense, the dissent may be attempting to carry forward the theory advanced in Cerminara focusing upon the happiness of the custodial parent as it relates to the best interests of the children, implicitly finding it unfair for a move to break down over the alternative visitation issue.
Over time, there appears to have been a gradual realization by the New Jersey courts that if a custodial parent is forced to stay, the family will not be a happy one, and this is clearly not in the children's best interests. Unless the custodial parent is purposely thwarting the visitation rights of the non-custodial parent, the trend is pro-relocation. As of this time, there is a substantial burden upon the non-custodial parent to show that an alternative visitation schedule will adversely affect his or her relationship with the children so as to be harmful to the children. This is especially so in light of the courts' willingness to explore the possibility of the non-custodial parent moving in order to maintain substantial contact with the children.
Many of these considerations are reflected in the Proposed Model Relocation Act. The comprehensive list of factors in the Model Act has been distilled from diverse sources including a number of state statutes, interpretive case law, legal articles, and opinions of mental health professionals in the child development field. The factors relate to virtually all possible considerations in a relocation case, and include:
- The child's relationship with all persons involved;
- The needs of the child and the impact of the move upon the child's development;
- The preservation of the relationship between the child and the non-relocating person through suitable visitation arrangements;
- The child's preference (considering age and maturity).
- Any pattern of conduct of the custodial parent either to promote or thwart the relationship between the child and the non-custodial parent;
- The general quality of life for the custodial party and the child;
- The reasons of each person for seeking or opposing the relocation; and
- Any other factor affecting the best interest of the child.
See Model Act, § 405.
Similar to the factors in New Jersey, these factors take into account the fact-sensitive nature of relocation cases and can be applied in a variety of circumstances. However, the Model Act merely provides this list of eight conjunctive factors to be considered in every relocation case, without any guidance on which factors to give more weight or whether certain ones are required to establish a threshold showing. The drafters of the Model Act have also failed to come to a consensus on the burden of proof in removal cases which might have shed light on how these factors should be applied, providing instead three alternatives:
- The relocating person would have the burden of proof that the proposed relocation is made in good faith and in the best interests of the child;
- The non-relocating person would have the burden of proof that the objection to the proposed relocation is made in good faith and that relocation is not in the best interests of the child; or
- The relocating person would have the burden of proof that the proposed relocation is made in good faith. If that burden is met, the burden shifts to the non-relocating person to show that the proposed relocation is not in the best interests of the child.
See Model Act § 407.
The overall purpose of the Model Act, however, is not to have the state legislatures enact its provisions in their entirety; it is meant to serve as a template for those jurisdictions wishing to codify the relocation law which has evolved through the cases. In this regard, it may in fact be time for New Jersey to codify existing law, using the Model Act as a starting point and the case law defining and re-defining the removal factors as a guide.
The Model Act does, however, provide an express statutory scheme in an area which New Jersey has left virtually untouched: notice requirements for a proposed relocation. The Model Act requires a person with the right to establish the principle residence of a child to notify every other person entitled to visitation with the child of a proposed relocation of the child's principal residence. In fact, an adult entitled to visitation with the child must also notify every other person entitled to custody or visitation with the child of an intended change in the primary residence address of that adult. Such notice must generally be given no later than the sixtieth day before the intended relocation or move, and contain certain specific information, including the specific reasons for the proposed relocation of the child, and a proposal for a revised schedule of visitation with the child. The relocation may then proceed unless a parent entitled to notice objects within thirty days. See Model Act, §§ 201-403, 301-302.
In New Jersey, a notice requirement is implicit in the removal statute, N.J.S.A. 9:2-2, which requires the custodial parent seeking to remove a child out of the state to notify the other parent of his/her intentions since the statute first requires the consent of both parents for the removal (if the children are under suitable age to consent) prior to an application for removal being presented to the court. There is not, however, any express provision for carrying out the notice requirement, and the courts have not addressed this issue either.
The implementation of an express notice requirement in New Jersey, such as that included in the Model Act, might expedite the entire process since the notice to the non-custodial person would include the reasons for the move and a proposed alternative visitation schedule, two of the factors the New Jersey court considers in its determination of relocation applications. As a separate consideration, such implementation would, as a practical matter, provide the child's custodian with the child's location during periods of visitation since the Model Act imposes the notice requirements upon any adult entitled to visitation with the child. It would also facilitate the enforcement of a child support order in a situation where it is a non-custodial parent with a child support obligation who is moving.
Another significant difference between the Model and New Jersey statutes is their application: New Jersey applies only to a removal from the State of New Jersey, whereas the Model Act applies to any relocation of the principle residence of a child, even one of a relatively short distance. See Model Act, § 101. The underlying reason for such a broad application is that any move might impede access to the child. Although, at first blush, it might appear that such application would increase litigation, in might in reality have the opposite effect since it would require continued communication between the parties involved.
Overall, New Jersey has, over time, successfully developed a thoughtful and well-defined relocation policy. It could, however, be more comprehensive, and the notice requirement is one such example of this. In view of the adoption of the Model Act by the American Academy of Matrimonial Lawyers, it may be appropriate for the New Jersey Legislature to consider enacting a thorough and comprehensive statute on the issue of removal. Such a statute could use the framework of the Model Act, while implementing the progressive policy defined over the past thirteen years in the case law and maintaining the child-centered approach of the New Jersey courts.