Law Lessons from MICHAEL P. HRYCAK v. RITA HRYCAK, App. Div., A-3645-08T2, October 29, 2009:

When children are natives of New Jersey, judicial approval is required to authorize their relocation to another state. See N.J.S.A. 9:2-2. The seminal and controlling precedent on this issue is the Supreme Court’s opinion in Baures v. Lewis, supra, 167 N.J. at 91.

The initial question to be resolved on an application to remove children from the jurisdiction of New Jersey “is whether the physical custodial relationship [between] the parents is one in which one parent is the ‘primary caretaker’ and the other parent is the ‘secondary caretaker.’” O’Connor v. O’Connor, 349 N.J. Super. 381, 385 (App. Div. 2002). If the court finds the custodial relationship is such, then the parent’s removal application “must be analyzed in accordance with the criteria outlined in Baures, supra, 167 N.J. at 116-17[.]” O’Connor, supra, 349 N.J. Super. at 385. Because we have affirmed the court’s designation of defendant as the primary caretaker and plaintiff as the secondary caretaker, the removal analysis here is therefore guided by the Baures standards.

Under Baures, the parent seeking to relocate the children has the initial burden to “produce evidence to establish prima facie that (1) there is a good faith reason for the move and (2) that the move will not be inimical to the child’s interests. Included within that prima facie case should be a visitation proposal.” Baures, supra, 167 N.J. at 118. Once the moving party establishes a prima facie case, “the burden of going forward devolves upon the noncustodial parent who must produce evidence opposing the move as either not in good faith or inimical to the child’s interest.” Id. at 119. In deciding the ultimate issue of removal, the Supreme Court instructed that:

the court should look to the following factors relevant to the plaintiff’s burden of proving good faith and that the move will not be inimical to the child’s interest:
(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.

[Id. at 116-17].
See also Barblock v. Barblock, 383 N.J. Super. 114 (App. Div.), certif. denied, 187 N.J. 81 (2006) (applying the Baures removal criteria).

The court in Baures emphasized the importance of having in place a viable parenting plan that sufficiently promotes visitation and contact with the noncustodial parent. Although a “mere change, even a reduction, in the noncustodial parent’s visitation is not an independent basis on which to deny removal,” visitation remains “one important consideration relevant to the question of whether a child’s interest will be impaired, although not the only one.” Baures, supra, 167 N.J. at 117. “Visitation is not an independent prong of the [Baures] standard, but an important element of proof on the ultimate issue of whether the child’s interest will suffer from the move.” Id. at 122.

The Court in Baures also underscored 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. at 117. “Innovative technology” such as e-mail and other Internet connections should be considered, as well as more traditional measures such as promoting the noncustodial parent’s connection with the child with visitation during school breaks and vacations and daily phone calls. Id. at 118. As the Court further instructed, “[w]hat is necessary is that communication and visitation is extensive enough to maintain and nurture the connection between the noncustodial parent and the child.” Ibid. (emphasis added).

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