James SHEA v. Dori SHEA, 384 N.J. Super. 266 (Chan. Div. 2005), Ocean County, April 5, 2005:

Procedurally, post-judgment removal actions should be initially addressed by motion. A plenary hearing is not necessary in every case where removal of children is at issue. Pfeiffer v. Ilson, 318 N.J.Super. 13, 722 A.2d 966 (App.Div. 1999). Only where a prima facie case for removal has been made, and there exist genuine issues of material fact bearing upon a critical question, is a plenary hearing necessary. Id. at 14, 722 A.2d 966.

Baures v. Lewis, 167 N.J. 91 (2001), the leading case governing removal hearings, integrates the Court’s earlier decisions in Holder v. Polanski, 111 N.J. 344 (1988), and Cooper v. Cooper, 99 N.J. 42 (1984), and provides a blueprint for courts to conduct these difficult proceedings. The first step in the Baures removal analysis is to determine the nature of the existing custodial relationship. Where the parties are exercising true, shared joint custody, the court is required to undertake the more stringent “best interests” analysis applicable to a change of custody application. Baures, supra, 167 N.J. at 115. Conversely, where the party seeking removal already exercises primary custody, his or her burden is to establish, (1) a good faith reason for the move and (2) that the move is not inimical to the child’s interests. The burden then shifts to the parent of alternate residence to produce evidence in opposition to the move. Id. at 118. The later test differs from a traditional custody determination, in that a parent’s interests are more closely considered. In O’Connor v. O’Connor, 349 N.J.Super. 381 (App.Div.2002), the court clarified the procedures for a trial court in determining which of the two standards should be utilized, if there is a dispute as to whether there is a true shared parenting arrangement.

It seems only fair and equitable, that where a request for removal comes shortly after the settlement of the Final Judgment of Divorce, and the material facts and circumstances forming the good faith reason for the removal request were known at the time of the entry of the final judgment, a party opposing the removal be entitled to contest custody under the best interests analysis, irrespective of whether the parties had a true shared parenting arrangement. In effect, the party opposing removal is restored to the position he or she held prior to the Final Judgment of Divorce. To rule otherwise could potentially encourage disingenuous settlements, encourage a party to use the Baures line of cases as a sword, or alternatively compel a cautious party to exhaustively litigate custody when not truly necessary. The moving party must, of course, initially make out a prima facie case for removal under Baures (good faith reason for removal and not inimical to interests of child) before the court would entertain such a custodial application.

Special Thank You to David Perry Davis, Esq., who brought this case to my attention.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

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