In removal cases, where the custodial parent seeks to relocate the child, the court considers the interests of the parents and the child. Baures v. Lewis, 167 N.J. 91, 115-16 (2001).

Consequently, in deciding which parent should be awarded primary custody, the court must apply the best interests standard to determine which parent can better advance the child’s welfare. Id. at 115.

The Baures standards is only applicable in instances where the relocating parent is the parent of primary residence. See O’Connor v. O’Connor, 349 N.J. Super. 381, 398 (App. Div. 2002).

NOTE: My legal services include family law, divorce, child support, litigation, arbitration, mediation, child custody and visitation, alimony, equitable distribution, separation agreements, palimony, PSA, property settlement agreement, premarital and prenuptial agreements, midmarriage and marital agreements.

In the instant case, where there was a finding of a willful violation of a court order demonstrated by a deliberate interference with a non-custodial parent’s right to visitation/parental access, the mother was sentenced to a period of incarceration for six weekends.

See related Blog Posts HERE and HERE and HERE.

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

Rule 5:3-7(a) provides that when a party violates an order pertaining to parenting time, economic sanctions may be imposed. These sanctions may include costs associated with the parent’s failure to comply with a court order.

NOTE: Adwokat / Prawnik Pawel Kostro mowi po polsku.

Under N.J.S.A. 9:2-2, a child cannot be removed from the State without consent “unless the court, upon cause shown, shall otherwise order.” To obtain a court order permitting removal,

the party seeking to move . . . should initially 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 v. Lewis, 167 N.J. 91, 118 (2001).]

Unlike the “rare de facto ‘shared parenting’ arrangement” involving joint legal and physical custody where “the removal application must be analyzed under the stricter change-of-custody test[,]” Barblock v. Barblock, 383 N.J. Super. 114, 121-22 (App. Div.) (citing O’Connor v. O’Connor, 349 N.J. Super. 381, 399-400 (App. Div. 2002)), certif. denied, 187 N.J. 81 (2006), where the movant is the residential custodian, “any sincere, good-faith reason will suffice,” and a custodial parent need not establish a “‘real advantage’ from the move.” Holder v. Polanski, 111 N.J. 344, 352-53 (1988); see also Baures, supra, 167 N.J. at 114. Recognizing “the custodial parent’s interest in self-determination,” Baures, supra, 167 N.J. at 97, the Baures Court noted that “relocation for employment purposes is common” and that “[o]n a personal level, people remarry and move away.” Id. at 96.

The Court in Baures established a twelve factor test to determine whether to approve a custodial parent’s removal of a child to an out-of-state location:

[I]n assessing whether to order removal, 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 non-custodial 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 non[-]custodial 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 non-custodial parent has the ability to relocate;
(12) any other factor bearing on the child’s interest.

[167 N.J. at 116-17.]

A prima facie showing is necessary before proceeding to a plenary hearing. Id. at 118. However,

The initial burden of the moving party is not a particularly onerous one. It will be met, for example, by a custodial parent who shows that he is seeking to move closer to a large extended family that can help him raise his child; that the child will have educational, health and leisure opportunities at least equal to that which is available here, and that he has thought out a visitation schedule that will allow the child to maintain his or her relationship with the non-custodial parent.

[Ibid.]

Once the movant establishes a prima facie case, the burden of going forward then shifts to the non-custodial parent, “who must produce evidence opposing the move as either not in good faith or inimical to the child’s interest.” Id. at 119; see also Barblock, supra, 383 N.J. Super. at 126. Thus, for example, a non-custodial parent must show “not just that the visitation will change, but that the change will negatively affect the child.” Baures, supra, 167 N.J. at 119. “Indeed, alterations in the visitation scheme when one party moves are inevitable and acceptable.” Id. at 117. Similarly, in order to show that the move is inimical to a child’s interest based on the effect on extended family relationships, the non-custodial parent would have to demonstrate not just that the child will see extended family less, but that moving away from extended family will negatively affect the child.

In reviewing the trial court’s determination in a removal action,

a reviewing court should uphold the factual findings undergirding the trial court’s decision if they are supported by adequate, substantial and credible evidence on the record. Even where the focus of the dispute is . . . alleged error in the trial judge’s evaluation of the underlying facts and their implications, and thus the traditional scope of review is expanded, we will nonetheless accord deference to the trial court’s findings unless they went so wide of the mark that a mistake must have been made. That deference is especially appropriate when the evidence is largely testimonial and involves questions of credibility.

[MacKinnon v. MacKinnon, 191 N.J. 240, 253-54 (internal quotations and citations omitted), stay denied, 551 U.S. 1177, 128 S. Ct. 7, 168 L. Ed. 2d 784 (2007).]

Moreover, “[b]ecause of the family courts’ special jurisdiction and expertise in family matters,” the appellate court accords substantial “deference to family court factfinding.” Cesare v. Cesare, 154 N.J. 394, 413 (1998).

While visitation is not an independent prong of a parent’s prima facie case, it is nevertheless “an important element of proof on the ultimate issue of whether the child’s interest will suffer from the move.” Baures, supra, 167 N.J. at 122.

“With the technology we have available such as computers and the internet, you can literally stay in touch and ‘see your family everyday’ via webcams, instant messaging, text messaging, text messages, and phone calls which are all excellent ways to stay in touch between live visits.” See, e.g., McCoy v. McCoy, 336 N.J. Super. 172, 182 (App. Div. 2001).

Submission of a custody plan/parenting time plan is required pursuant to Rule 5:8-5 if there are genuine and substantial issues concerning either custody, parenting time, or both. See also Luedtke v. Shobert, 342 N.J. Super. 202, 218 (App. Div. 2001) (custody plan required for hearing involving change in custody). Furthermore, as noted, this is not a removal case where “the parents truly share both legal and physical custody, [such that] an application by one parent to relocate and remove the residence of the child to an out-of-state location must be analyzed as an application for a change of custody[.]” O’Connor, supra, 349 N.J. Super. at 385.

Rule 5:8-1 requires referral to mediation of custody disputes, and if mediation is not successful, an investigation by the Family Division may be ordered.

Rule 5:3-3(a) allows the court in its discretion to order a mental health examination of any person under its jurisdiction.

Hoever, neither Rule 5:8-6 nor Rule 5:8-3 requires that the court order an initial determination by a mental health professional before interviewing the child or order a mental health professional to later evaluate the court’s interview.

Under Rule 5:8-6,

. . . As part of the custody hearing, the court may on its own motion or at the request of a litigant conduct an in camera interview with the child(ren). In the absence of good cause, the decision to conduct an interview shall be made before trial. . . . If the court elects to conduct an interview, it shall afford counsel the opportunity to submit questions for the court’s use during the interview and shall place on the record its reasons for not asking any question thus submitted. . . .

The mandated course is to afford the parties a timely opportunity for input.

NOTE: My legal and mediation services are offered to Polish-speaking and other clients in Union, Middlesex, Somerset, Essex, Hudson, Bergen, and Morris counties in NJ.

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

Relocation applications are among the most troublesome matters with which a court must deal. “There is rarely an easy answer or even an entirely satisfactory one when a noncustodial parent objects.” Baures v. Lewis, 167 N.J. 91, 97 (2001). In Baures, Justice Long set forth the framework within which such applications should be analyzed.

In terms of the burden of going forward, the party seeking to move, who has had an opportunity to contemplate the issues, should initially 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. By prima facie is meant evidence that, if unrebutted, would sustain a judgment in the proponent’s favor.

The initial burden of the moving party is not a particularly onerous one. It will be met, for example, by a custodial parent who shows that he is seeking to move closer to a large extended family that can help him raise his child; that the child will have educational, health and leisure opportunities at least equal to that which is available here, and that he has thought out a visitation schedule that will allow the child to maintain his or her relationship with the noncustodial parent. If, for some reason, the custodial parent fails to produce evidence on the issues to which we have referred, the noncustodial parent will have no duty to go forward and a judgment denying removal should be entered.

Once that prima facie case has been adduced, however, 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. She might, for example, challenge the move as pretextual and show that the custodial parent’s past actions reveal a desire to stymie her relationship with the child, thus bearing on good faith. She might also offer proof that the move will take the child away from a large extended family that is a mainstay in the child’s life. Alternatively, she could adduce evidence that educational, avocational or health care [sic] available in the new location are inadequate for the child’s particular needs. She might also proffer evidence that because of her work schedule, neither relocation nor reasonable visitation is possible, and that those circumstances will cause the child to suffer. Where visitation is the issue, in order to defeat the custodial parent’s proofs, the burden is on the noncustodial parent to produce evidence, not just that the visitation will change, but that the change will negatively affect the child.

[Id. at 118-19.]

Justice Long also set forth the factors a court should consider when weighing the application.

[T]he 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.]

The Court stressed that “a mere change, even a reduction, in the noncustodial parent’s visitation is not an independent basis on which to deny removal.” Id. at 117.

“Where visitation is the issue, in order to defeat the custodial parent’s proofs, the burden is on the noncustodial parent to produce evidence, not just that the visitation will change, but that the change will negatively affect the child.” Baures, supra, 167 N.J. at 119.

NOTE: My legal services include family law, divorce, child support, litigation, arbitration, mediation, child custody and visitation, alimony, equitable distribution, separation agreements, palimony, PSA, property settlement agreement, premarital and prenuptial agreements, midmarriage and marital agreements.

When there is “a genuine and substantial” custody issue, Rule 5:8-6, a plenary hearing is necessary to develop the record. See Mackowski v. Mackowski, 317 N.J. Super. 8, 11 (App. Div. 1998) (noting “the failure to conduct a plenary hearing and to interview the child was inconsistent with R. 5:8-6″); Wilke v. Culp, 196 N.J. Super. 487, 501 (App. Div. 1984) (holding that child visitation issues should not be decided on the basis of conflicting affidavits or an inadequate record), certif. denied, 99 N.J. 243 (1985).

NOTE: My legal and mediation services are offered to Polish-speaking and other clients in Fanwood 07023; Garwood 07027; Kenilworth 07033; Mountainside 07092; New Providence 07974; Roselle Park 07204; Roselle 07203; Elizabeth 07201; Linden 07036; Plainfield 07060; Rahway 07065; Summit 07901; Westfield 07090; Berkeley Heights 07922; Clark 07066; Cranford 07016; Hillside 07205; Scotch Plains 07076; Springfield 07081; Union 07083; Winfield; Carteret 07008; Dunellen 08812; East Brunswick 08816; Edison 08817; Jamesburg 08831; Metuchen 08840; New Brunswick 08901; Old Bridge 08857; Perth Amboy 08861; Sayreville 08871; South Amboy 08878; South River 08877; Avenel 07001; Colonia 07067; Iselin 08830; Woodbridge 07095; Somerset 08873; Somerville 08876 and Watchung 07069, New Jersey.

A non-moving parent is not free to reject every visitation schedule without offering one of his own. Baures v. Lewis, 167 N.J. 91, 117-l8 (2001); McCoy, supra, 336 N.J. Super. at 182. Baures, does not require “duplication” of the current parenting arrangement; otherwise, relocation would rarely be granted. 167 N.J. at 117. Rather, Baures requires a communication and visitation plan that “is extensive enough to maintain and nurture the connection between the noncustodial parent and the child[ren].” Id. at ll8. Mother satisfied this requirement by providing ample technological communication options to supplement an extensive visitation plan. Father does not need to be in close proximity or physically present to provide emotional support to the girls or be a “calming influence” on them; he can regularly call them, text them, email them and communicate by webcam in addition to visitation.

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

“The pivotal factor and paramount consideration in matters involving custody of minor children is the happiness and welfare of such children.” Sheehan v. Sheehan, 51 N.J. Super. 276, 291 (App. Div.), certif. denied, 28 N.J. 147 (1958). Once custody has been decided, a court must still consider the happiness and welfare of the children. Cf. Beck v. Beck, 86 N.J. 480, 497 (1981) (“It would be incongruous and counterproductive to restrict application of [the best interests of the child] standard to the relief requested by the parties to a custody dispute.”).

This concern must infuse the consideration of parenting time. “The children’s best interest in this situation is closely related to the noncustodial parent’s right to visitation. ‘From that perspective, the “cause” requirement of N.J.S.A. 9:2-2 implicates the best interests of the child as manifested through visitation with the noncustodial parent.’” Winer v. Winer, 241 N.J. Super. 510, 518 (App. Div. 1990) (quoting Holder v. Polanski, 111 N.J. 344, 352 (1988)) (internal citation omitted). Thus, the court must consider each parent’s constitutional right to enjoy a relationship with their children. In re P.S., 315 N.J. Super. 91, 107 (App. Div. 1998). The goal is to arrive at a reasonable parenting-time schedule consistent with the best interests of the children and the rights of the parents. Wilke v. Culp, 196 N.J. Super. 487, 496 (App. Div. 1984) (“It is well[-]settled that the law favors visitation. . . . [C]ourts should endeavor that children of separated parents should be imbued with love and respect for both parents . . . by conferring reasonable rights of visitation on the [noncustodial] parent.”), certif. denied, 99 N.J. 243 (1985); In re Jackson, 13 N.J. Super. 144, 147 (App. Div. 1951) (“Consistent with the paramount concern for the welfare of the child . . . [a] court always determines that, whenever custody is awarded to a parent, the other parent shall not only be privileged to see the children at all times, but shall be encouraged by the parent custodian in seeing them as freely, as fully, as often, and as long as possible, and in a manner best suited to the encouragement of mutual affection.”); Barron v. Barron, 184 N.J. Super. 297, 301 (Ch. Div. 1982) (“Parental rights will be preserved unless enforcing them will adversely affect the ‘safety, happiness, physical, mental and moral welfare of the child.’” (quoting Fantony v. Fantony, 21 N.J. 525, 536 (1956))); cf. V.C. v. M.J.B., 163 N.J. 200, 215-28 (holding that visitation is presumptive subject to N.J.S.A. 9:2-4 considerations), cert. denied, 531 U.S. 926, 121 S. Ct. 302, 148 L. Ed. 2d 243 (2000).

The mere passage of months does not amount to changed circumstances, although, as children grow older, the parameters of parenting time may change.

NOTE: My Law Office is located at 726 West Saint Georges [W. St. Georges] Avenue (Route 27), Linden, Union County, NJ. Telephone: 908-486-2200

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The party seeking a modification of the existing custody arrangement must demonstrate changed circumstances that affect the best interests of the child. Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007). In determining the best interests of the child, the court is obliged to consider the statutory factors established by N.J.S.A. 9:2-4(c), which provides:

the parents’ ability to agree, communicate and cooperate in matters relating to the child; the parents’ willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse; the interaction and relationship of the child with its parents and siblings; the history of domestic violence, if any; the safety of the child and the safety of either parent from physical abuse by the other parent; the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision; the needs of the child; the stability of the home environment offered; the quality and continuity of the child’s education; the fitness of the parents; the geographical proximity of the parents’ homes; the extent and quality of the time spent with the child prior to or subsequent to the separation; the parents’ employment responsibilities; and the age and number of the children. A parent shall not be deemed unfit unless the parents’ conduct has a substantial adverse effect on the child.

[N.J.S.A. 9:2-4(c).]

The best interests of the child standard also applies to decisions regarding parenting time and visitation. Sacharow v. Sacharow, 177 N.J. 62, 80 (2003) (holding that in such cases, “the sole benchmark is the best interests of the child”); Wilke v. Culp, 196 N.J. Super. 487, 496-97 (App. Div. 1984), certif. denied, 99 N.J. 243 (1985).

A child’s preference is one consideration in the best interest analysis, but it is not dispositive. Wilke, supra, 196 N.J. Super. at 498. Further, “[a]lthough a joint legal custodial relationship among parents is the preferred arrangement since it is likely to foster the best interests of the child in the proper case, the decision concerning the type of custody arrangement is left to the sound discretion of the trial court.” Nufrio v. Nufrio, 341 N.J. Super. 548, 555 (App. Div. 2001) (internal quotations, citations and alterations omitted).

The law favors parenting time arrangements that promote the best interests of the child, and that afford liberal parenting time so as to enable the “children of separated parents [to] be imbued with love and respect for both parents . . . .” Wilke, supra, 196 N.J. Super. at 496.

In establishing a parenting time schedule, the judge must be guided by the applicable statutory test, which is the best interests of the child, as set forth in N.J.S.A. 9:2-4(c). Sacharow, supra, 177 N.J. at 80.

NOTE: My legal and mediation services are offered to Polish-speaking and other clients in Union, Middlesex, Somerset, Essex, Hudson, Bergen, and Morris counties in NJ.

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