(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in
the interests of brevity, portions of any opinion may not have been summarized).
Argued January 17, 2001 -- Decided April 23, 2001
LONG, J., writing for a unanimous Court.
In this appeal, the Court clarifies the legal standards that should apply in addressing a removal application,
and what role visitation plays in that determination.
On October 5, 1985, in Rothschild, Wisconsin, Carita Baures, a native of Wisconsin, married Steven
Lewis, a native of Iowa and an officer in the United States Navy. Their only child, Jeremy, was born in 1990. In
1994, the couple moved to new Jersey when Lewis was stationed in Leonardo.
At age four, Jeremy was diagnosed with Pervasive Developmental Disorder (PDD), a form of autism.
Over the next few years, an effective therapeutic and educational program was created for Jeremy through a
combination of public school and the Douglass College Outreach Program.
Baures and Lewis planned to move near Baures' parents in Wisconsin after Lewis' discharge from the
Navy. Baures' parents were retired school teachers and offered to help care for Jeremy while Baures and Lewis
worked. In anticipation of that move, Baures' parents moved to Galesville, Wisconsin because Galesville was a
short distance from the Chileda Institute (Chileda), a program for autistic children.
In 1996, Baures filed for divorce. A consent order was entered, providing for custody and visitation and
restraining either parent from leaving the State with Jeremy. In June 1996, Baures' parents came to live in New
Jersey to help care for Jeremy and remained for over a year. During that time, Baures' father transported Jeremy to
and from his programming and provided additional child care. Baures' parents also contributed money each month
to supplement Lewis' court ordered child support.
In April 1997, Baures filed an amended complaint for divorce requesting permission to relocate to
Wisconsin. At trial, Baures testified that the parties had limited funds and could no longer afford to live in New
Jersey without the help of her parents. Without a car, she could not take Jeremy to his special programming or to
his doctors. Moreover, Jeremy's special needs precluded regular day care. Baures testified that in Wisconsin, her
parents could provide childcare and a place to live so that she could work. Although Baures testified that Chileda
offered outreach programming similar to the Douglass Program, she failed to provide information about available
services in the Wisconsin public schools. Baures noted that the relationship between Lewis and Jeremy was
important and to encourage it, she proposed that Lewis visit Jeremy one week a month and stay free of charge in her
parents' basement. She also agreed to pay a portion of Lewis' transportation costs.
Lewis testified that there were no jobs in Galesville and that he would not be permitted to travel to
Wisconsin one week each month to visit Jeremy. He claimed that Jeremy would regress if he is separated from his
father for an extended period of time.
The trial court denied the removal request, finding the move would not be in the “best interests” of Jeremy
because of the adverse affect the move would have on Lewis' visitation. The court acknowledged that Baures
sought removal in good faith but that she had failed to provide sufficient evidence of comparable educational
opportunities for Jeremy in Wisconsin. Baures moved for reconsideration, which was denied by the trial court
following a “best interests” analysis.
Lewis was discharged from the Navy in July of 1998. He found a full-time job in Edison as an electronics
technician and a part-time job as a quality assurance tester. Because of Lewis' discharge, Baures requested and was
granted a Rampolla hearing on the issue of whether Lewis could relocate to Wisconsin. At that hearing, Lewis
testified that he investigated job opportunities in Wisconsin but had no success. He did acknowledge on cross-
examination that his entire job search consisted of looking at classified ads on the Internet. The trial court affirmed
its denial of Baures' motion, finding that Baures failed to prove the “prospective advantages” of the move; that
Jeremy is doing well in New Jersey; that the proximity of both parents is important to a special needs child; and that
there was insufficient evidence demonstrating Lewis' ability to obtain a job in Wisconsin at a location near Jeremy.
Most importantly, the trial court relied on Baures' failure to provide adequate evidence of the comparability of
educational and therapeutic facilities available to Jeremy in Wisconsin.
The Appellate Division affirmed the ruling of the trial court and the Supreme Court granted certification.
HELD: In a removal case, the burden is on the custodial parent who seeks to relocate to prove: 1) a good faith
motive; and 2) that the move will not be inimical to the best interest of the child. Visitation is not an
independent prong of the standard, but an important element of proof on the ultimate issue of whether the
child's interest will suffer from the move.
1. Courts have significantly eased the burden on custodial parents in removal cases, for reasons including:
increased geographical mobility and post-divorce demands; advances in technology that make communication over
long distances much easier; social science research linking a positive outcome for children of divorce with the
welfare of the custodial parent and the stability of and happiness within the newly formed household; and research
suggesting that so long as a child has regular communication with the noncustodial parent that is extensive enough
to sustain the relationship, the child's interests are served. (Pp. 14-21)
2. Under New Jersey's removal statute, the custodial parent may remove a child from the jurisdiction with the
consent of the noncustodial parent or by making a successful removal application to the court. In Cooper v. Cooper,
the Court recognized the fundamental tension that exists in a removal case: the interests of the custodial parent in
self-governance versus the interests of the noncustodial parent in maintaining a relationship with the child. The
Court held that the custodial parent must show that there is a real advantage to that parent in the move and that the
move is not inimical to the best interest of the child. Four years later, in Holder v. Polanski, the Court held that the
real advantage test was too great a burden and that Cooper had failed in its intent to allow custodial parents the same
freedom enjoyed by noncustodial parents to seek a better life. Under Holder, removal should not be denied solely to
maintain the same visitation scheme where a reasonable alternative visitation schedule is available and there are
good faith reasons for the move. Current decisions applying Holder demonstrate confusion regarding the burden of
going forward, the ultimate burden of proof, and the elements of the burden in determining whether the move would
be inimical to the best interest of the child. (Pp. 21-31)
4. In making a removal determination, the court should assess the following factors: 1) reasons for the move; 2)
reasons for the opposition; 3) past history of dealings between the parties as bears on the reasons for and against the
move; 4) whether the child will receive comparable educational, health, and leisure opportunities; 5) any special
needs or talents of the child that require accommodation and whether such accommodation 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 relationship of the child with the noncustodial parent; 8) the effect of the move on extended
family relationships; 9) if the child is of age, his or her preference; 10) whether the child is entering senior year in
high school; 11) whether the noncustodial parent has the ability to relocate; and 12) any other factor bearing on the
child's interest. Not all factors will be relevant or equally weighted. (Pp. 31-35)
5. The moving party bears the burden of proving a good faith reason for the move and that the child will not suffer
for it. In terms of the burden of going forward, 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 in that showing should be a visitation proposal. Thereafter, the burden of going forward
moves to the noncustodial parent to produce evidence opposing the move as being either not in good faith or
inimical to the child's interest. Where visitation is concerned, the burden is on the noncustodial parent to produce
evidence that the change will negatively affect the child. (Pp. 35-39)
6. Clearly, Baures met the burden of establishing a goof faith reason for the move but fell short in adducing
sufficient evidence of the compatibility of the Wisconsin special education program with the New Jersey program.
If she can provide such proof, then Lewis may produce evidence about the harm that would occur to Jeremy if
removal were allowed. The evidence adduced at the Rampolla hearing was inadequate to sustain Lewis' position
that he could not obtain a job in Wisconsin. He also failed to produce evidence of any strong ties to New Jersey.
Moreover, there should be an inquiry into Baures' parents ability and willingness to relocate. (Pp. 39-43)
Judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Law
Division for proceedings consistent with this opinion.
CHIEF JUSTICE PORITZ and JUSTICES STEIN, COLEMAN, VERNIERO, LAVECCHIA and
ZAZZALI join in JUSTICE LONG'S opinion.
SUPREME COURT OF NEW JERSEY
A-
135 September Term 1999
CARITA L. BAURES,
Plaintiff-Appellant,
v.
STEVEN R. LEWIS,
Defendant-Respondent.
Argued January 17, 2001 -- Decided April 23, 2001
On certification to the Superior Court,
Appellate Division.
Veronica M. Davis argued the cause for
appellant (Lomurro, Davison, Eastman &
Munoz, attorneys; Cheryl K. Brunner, on the
brief).
Barbara L. Birdsall argued the cause for
respondent (Stout & O'Hagan, attorneys).
The opinion of the court was delivered by
LONG, J.
Ideally, after a divorce, parents cooperate and remain in
close proximity to each other to provide access and succor to
their children. But that ideal is not always the reality. In
our global economy, relocation for employment purposes is common.
On a personal level, people remarry and move away. Noncustodial
parents may relocate to pursue other interests regardless of the
strength of the bond they have developed with their children.
Custodial parents may do so only with the consent of the former
spouse. Otherwise, a court application is required.
Inevitably, upon objection by a noncustodial parent, there
is a clash between the custodial parent's interest in self-
determination and the noncustodial parent's interest in the
companionship of the child. There is rarely an easy answer or
even an entirely satisfactory one when a noncustodial parent
objects. If the removal is denied, the custodial parent may be
embittered by the assault on his or her autonomy. If it is
granted, the noncustodial parent may live with the abiding belief
that his or her connection to the child has been lost forever.
Courts throughout the country, grappling with the issue of
relocation, have not developed a uniform approach. Ann M.
Driscoll, Note, In Search of a Standard: Resolving the Relocation
Problem in New York,
26 Hofstra L. Rev. 175, 176 (1997). Some
use a presumption against removal as their point of departure;
others use a presumption in favor of removal; still others
presume nothing, but rely on a classic best-interests analysis.
Id. at 178.
We have struggled to accommodate the interests of parents
and children in a removal situation in our prior cases. Holder
v. Polanski,
111 N.J. 344 (1988); Cooper v. Cooper,
99 N.J. 42
(1984). In so doing, we have developed something of a hybrid
scheme. Although it is not based upon a presumption in favor of
the custodial parent, it does recognize the identity of the
interests of the custodial parent and the child, and, as a
result, accords particular respect to the custodial parent's
right to seek happiness and fulfillment. At the same time, it
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 that relationship.
Further, it incorporates a variation on a best interests analysis
by requiring proof that the child will not suffer from the move.
We revisit the issue in this appeal, not only to resolve the
matter before us, but because of what we perceive as confusion
among the bench, Bar, and litigants over the legal standards that
should apply in addressing a removal application, and
particularly over what role visitation plays in the calculus.
I
Carita Baures (Baures), a native of Wisconsin married Steven
Lewis (Lewis), a native of Iowa and an officer in the United
States Navy, on October 5, 1985, in Rothschild, Wisconsin. Their
only child, Jeremy, was born on June 24, 1990. During the
marriage, the couple lived in the various locations in which the
Navy billeted them. In 1994, they moved to New Jersey when Lewis
was stationed in Leonardo.
At age two, Jeremy began to exhibit developmental
difficulties. By 1994, Jeremy, then aged four, was diagnosed
with Pervasive Developmental Disorder (PDD), a form of autism.See footnote 11
Over the next few years, through trial and error, the parents
arranged an effective therapeutic and educational regimen for
Jeremy through a combination of public school and the Douglass
College Outreach Program.
In 1995, recognizing that their financial resources were
being taxed to the limit, Baures and Lewis discussed moving to
Wisconsin. Baures' parents live in Wisconsin and are retired
school teachers who offered to help care for Jeremy while Baures
and Lewis worked. According to both parties, the couple planned
to move to Wisconsin after Lewis was discharged from the Navy in
1998. In anticipation of the discharge, Baures' parents sold
their home in Schofield, Wisconsin and moved to Galesville
because, according to them, it was a short distance to the
Chileda Institute (Chileda), a Program for autistic children.
Lewis flew to Wisconsin to research job opportunities.
In 1996, escalating marital discord brought the case to
court. Lewis sought custody of Jeremy because he believed that
Baures was going to remove the child to Wisconsin. One day
before the hearing, Baures filed a complaint for divorce alleging
extreme cruelty. In response to Lewis's application for custody,
Baures denied that she had any intention of moving Jeremy out of
New Jersey. The parties then entered into a consent order that
provided for custody and visitation and restrained both parties
from leaving New Jersey with Jeremy. Baures and Lewis separated
in late 1996. In April 1997, Baures filed an amended complaint
for divorce requesting permission to relocate to Wisconsin. A
three-day trial was held to resolve the issue.
At trial, Baures claimed that she should be allowed to
relocate to Wisconsin because the parties had limited funds and
could no longer afford to live in New Jersey without the help of
her parents. Without a vehicle (Lewis had taken the family car),
Baures had no way to get Jeremy to his special programming or to
his doctors. Moreover, because Jeremy is a child with special
needs, he could not be admitted to regular day care. Baures
testified that in Wisconsin, her parents would be able to provide
child care and shelter for her and Jeremy so that she could work.
Although Baures holds a master's degree in human resources
management that she obtained in 1989, she never worked in that
field and has held only part-time cleaning and baby-sitting jobs
since Jeremy was born. She attempted to find more suitable
employment but, of the twenty-four jobs in her field that she
researched, Baures testified that none was able to provide child
care for Jeremy because of his special needs.
In June of 1996, Baures' parents came to New Jersey to help
her care for Jeremy and remained for over a year after Lewis took
Baures' name off the checkbook, credit cards and savings account,
and denied her the use of the automobile. In that time, Baures'
father transported Jeremy to and from his programming, and
provided additional child care. In total, Baures' parents paid
her in excess of one-thousand dollars per month to supplement the
court ordered child support she received in the amount of one-
hundred dollars per week.
Baures testified that the Chileda Institute offers outreach
programming to children who have been diagnosed with autism or
PDD. The program is similar to the Douglas Program in that it
provides trained professional therapy for the child at home.
Chileda is located within twenty minutes of Baures' parents'
house. Baures inquired whether Jeremy would be eligible for
services at Chileda and faxed the school Jeremy's diagnostic
materials and other documentation. A representative of Chileda
responded that, based on the materials she had received, Jeremy
would be eligible. She could not, however, say specifically what
programming would be provided until there was an accurate
assessment of Jeremy to determine what approach should be
incorporated into the home program. Baures conceded that,
although her father visited Chileda, she never did so, and that
what she knew about the program was elicited from telephone
calls, literature, and her father's visit. Baures offered no
information regarding what services are available in the
Wisconsin public schools.
Baures acknowledged that Lewis should have ongoing contact
with Jeremy. To encourage the relationship, she stated that
Lewis could visit Jeremy one week a month and stay in her
parents' basement free of charge. That offer was reiterated by
Baures' father. In addition, Baures agreed to pay half of the
transportation costs from New Jersey to Wisconsin if Lewis could
obtain an economical rate.
On cross-examination, Baures testified that Lewis was a good
father to Jeremy, and that his presence in Jeremy's life is
important to the child's progress. Moreover, she acknowledged
that in the initial action instituted by Lewis to prevent her
from moving to Wisconsin, she had stated that if Jeremy was to
leave the State of New Jersey, he would lose his relationship
with his father and would be prevented from attending the
Douglass Program, the best available program, both of which would
adversely affect his progress.
Joan Hurst, a coordinator at the Douglass Program, testified
at trial on Baures' behalf. Hurst was offered and accepted as an
expert in the field of autism and PDD. Hurst explained that a
child with autism needs a highly structured, full-day program
beyond normal school hours that teaches and applies behavior
modification techniques throughout the day. Hurst explained that
a strong family support system is important because:
[i]t's really the basis of the child's
program. The school and the professionals
can lay the foundation and show the family
what to do, but it needs follow through in
all areas of their lives. And since home is
really the most common place for them and in
their security and where they are most of the
time, everything needs to continue when they
come home from school. And it needs to
continue to go on with the family at home.
When asked what a family member might have to do to continue
home programming, Hurst went on:
every minute is a teaching minute . . .
especially with Jeremy having the diagnosis
of autism, since language is such an issue,
there should be constant modeling of
language. There should be constant modeling
of appropriate reactions to situations . . .
. There should be constant teaching on how to
successfully complete daily activities of the
day. And constant teaching and modeling and
prompting of what is normal and acceptable to
society of things that we go through each
day.
Hurst made several recommendations with respect to Jeremy
that include the following: that any program for Jeremy must be
highly structured and staffed by professionals experienced in the
field of autism; have a low student/teacher ratio; provide
appropriate peer models; operate on a twelve month basis; support
the family; offer a trained professional to assist Jeremy as a
shadow,See footnote 22 and provide speech therapy sessions as needed. She did
not render an opinion regarding whether the Wisconsin public
schools and Chileda could provide those services.
At the time of the hearing, Lewis, who holds a bachelor's
degree in economics, was employed in the United States Navy, and
had been for over nineteen years. His rank was that of a chief
petty officer, electronics technician. He indicated that his
ultimate career goal is to be an electrical engineer, but that he
will be required to take further courses. Further, he claimed,
based on advertisements in the newspaper and talking with people
in the area, Galesville, Wisconsin offered no jobs. He stated
that he has no property or family in Wisconsin, however, his
mother lives in Minnesota, about a five-hour distance from
Wisconsin. At the time of the hearing, his visitation schedule
was two afternoons a week from 4:30 p.m. until 7:30 p.m. and
alternate weekends.
Lewis testified that his command would not let him travel to
Wisconsin one week a month to visit his son. Regardless, he
stressed that he could not visit at the Baures's house due to the
estranged relationship with their daughter. Lewis stated that
Jeremy will regress if he is separated from him for an extended
period of time.
The trial court denied the removal. Although acknowledging
that Baures had a good faith reason to move (financial and
emotional stability and caregiving by her parents), the court
held that the move would adversely affect Lewis' visitation with
Jeremy; that Lewis could not visit regularly or relocate because
of his Navy service; and that he does not have the financial
resources to travel back and forth to Wisconsin. Further, the
court held that Baures had not provided sufficient evidence that
the educational opportunities for Jeremy in Wisconsin are
comparable to that which he was receiving in New Jersey.
Accordingly, the court held it was not in Jeremy's “best
interests” to move to Wisconsin.
After being denied permission to remove Jeremy from New
Jersey, Baures moved for reconsideration. The court entered a
Judgment of Divorce in February 1998, and ordered a “best
interests” evaluation by Dr. Amy Altenhaus. Although there was
no issue as to custody, Dr. Altenhaus stated her opinion that it
was in Jeremy's best interest that his mother continue as the
primary custodial parent. However, Altenhaus found that Baures
and Lewis complemented each other's parenting styles. For
example, Altenhaus observed that Baures attends to the everyday
details of Jeremy's life, and is caring and supportive. In
contrast, she found that Lewis wanted desperately for Jeremy to
be “normal” and seemed “motivated to do whatever he can to help
this boy be 'normal.'” Furthermore,
[w]hile [Mr. Lewis] may need to have a more
realistic picture of what is possible for
Jeremy, nonetheless his style with Jeremy is
certainly important as well. Mr. Lewis gives
Jeremy more room to explore and to do rough
and tumble play. Mr. Lewis will take him
places and let him explore more on his own
without some of the structure that Ms. Baures
imposes. While this structure is very
important for Jeremy's acquisition of skills,
it is also important that children like this
have a chance to explore their environment in
a less structured manner as well . . . Jeremy
clearly loves and enjoys being with both of
his parents.
She stated that a move to Wisconsin “does not seem” to be in
Jeremy's interest because Jeremy was doing well in East
Brunswick, and because he would be unable to sustain a long
distance relationship with his father who could not relocate
because of his Navy commitments. Reconsideration was denied.
Lewis was discharged from the Navy on July 31, 1998. He
found a full-time job in Edison as an electronics technician at a
starting salary of $26,500, and a part-time job as a quality
assurance tester for $9 an hour. As a result of Lewis'
discharge, Baures requested the trial court to conduct a hearing
on the issue of whether Lewis could relocate to Wisconsin
pursuant to the requirements of Rampolla v. Rampolla,
269 N.J.
Super. 300, 307-08 (App. Div. 1993). Rampolla holds that in a
removal case, the court should inquire about the capacity of the
noncustodial parent to relocate as a method of ensuring the
vitality of a shared custody arrangement. Id. at 307. Lewis
testified that he had investigated job opportunities in
Wisconsin, but had no success. He said that the jobs that were
available in Galesville, a very small town, were not in his area
of expertise and were low paying. He identified only two jobs
that were commensurate with his skill level, but claimed that
they were located in Milwaukee, a six-hour drive from Galesville.
Lewis said that he had considered working at IBM, located in
nearby Rochester, Minnesota, but that he did not have the
necessary digital electronics background or computer skills.
To counter Lewis's arguments, Baures offered the testimony
of Arnold Gelfman, an employability and vocational expert from
the Career Choice Institute of New Jersey. Gelfman testified in
detail, concluding that Lewis had significant job opportunities
as an electronics technician in Wisconsin and Minnesota at
comparable or higher wages than in New Jersey and that the
availability of such employment would increase at greater rates
between 1994 and 2005 in Wisconsin and Minnesota than in New
Jersey.
Lewis downplayed those statistics and said that they did not
provide information about exactly where in Wisconsin and
Minnesota those jobs could be found; did not identify any
particular employer or industry in either state that had an
immediate need for electronics' technicians; did not consider the
fact that his expertise is limited to analog electronics; and did
not recognize that not all electronics' technicians have the same
skills. On cross-examination, Lewis acknowledged that his entire
job search consisted of looking at classified ads on the Internet
and that he never sent a letter or made a phone call to any
potential employer in Wisconsin or went to that state to seek
employment.
Based on the Rampolla hearing, and the testimony from the
1997 trial, the trial court affirmed its denial of Baures'
motion. In so doing, the court stated that Baures was required
to prove “the prospective advantages” of the move and that she
had failed to do so. The court reaffirmed the conclusion that
Baures' motion was made in good faith but noted that Jeremy is
doing well in New Jersey; that the proximity of both parents is
important to a special needs' child; and that there was
insufficient evidence adduced to show that Lewis could obtain
employment in Wisconsin at a location near Jeremy. Most
importantly, in denying removal, the court relied on the fact
that Baures did not provide adequate evidence of the
comparability of educational and therapeutic facilities available
to Jeremy in Wisconsin.
The Appellate Division affirmed the ruling in an unpublished
decision. We granted certification. Baures v. Lewis,
165 N.J. 488 (2000).
II
Historically, courts throughout the country have disfavored
removal of a child from the jurisdiction after divorce. Edwin J.
Terry et al., Relocation: Moving Forward or Moving Backward?,
31
Tex. Tech. L. Rev. 983, 986 (2000). Some courts continue to
adhere to that view and apply a presumption against removal based
on the notion that it will necessarily destroy the relationship
between the noncustodial parent and the child. See White v.
White,
650 A.2d 110, 113 (Pa. Super. Ct. 1994)(requiring parent
to demonstrate that move will significantly improve quality of
life for parent and child before allowing removal); McCalister v.
Patterson,
299 S.E.2d 322, 323 (S.C. 1982)(announcing that
presumption can be overcome only by showing relocation will
benefit child).
Recently, however, many courts have reassessed the burden
cast on custodial parents who desire to relocate with their
children. Reasons for the change include the geographic mobility
of the United States population and post-divorce demands. Chris
Ford, Untying the Relocation Knot: Recent Developments and a
Model for Change, 7 Colum. J. Gender & L. 1, 7 (1997). For
example, within four years of separation and divorce about one-
fourth of mothers with custody move to a new location. Ibid. In
addition, one in five Americans overall changes his or her
residence each year. Ibid.
That the ability to communicate over long distances has been
revolutionized during the years since the first removal cases is
also undeniable. Kelly M. Slavitt, Gabby in Wonderland-Through
the Internet Looking Glass, 80 J. Pat. & Trademark Off. Soc'y
611, 611-12 (1998). Computers, technology and competitive long-
distance rates, among other things, essentially have changed the
way people connect with each other when they are apart. Ibid.
Most importantly, social science research links a positive
outcome for children of divorce with the welfare of the primary
custodian and the stability and happiness within that newly
formed post-divorce household. See Judith S. Wallerstein & Tony
J. Tanke, To Move or Not to Move: Psychological and Legal
Considerations in the Relocation of Children Following Divorce,
30 Fam. L.Q. 305, 311-12 (1996)(stating that psychological
adjustment of custodial parent consistently has been found to be
related to child's adjustment); Marsha Kline et al., Children's
Adjustment in Joint and Sole Custody Families,
25 Develop. Psych. 430, 431 (1989)(noting that research indicates that factor
associated with good outcomes for children in post-divorce
families includes a close, sensitive relationship with a
psychologically intact custodial parent). Justice Garibaldi
touched on that in Cooper sixteen years ago when she said:
[T]he child's quality of life and style of
life are provided by the custodial parent.
That the interests of the child are closely
interwoven with those of the custodial parent
is consistent with psychological studies of
children of divorced or separated parents.
One researcher has concluded that [o]f all
factors related to the child's way of coping
with loss [of a parent because of divorce or
death], the role of the home parent seemed
most central. Some years after the divorce
or death, the well-being of the child
appeared closely related to the well-being of
the [home]parent. [L.Tessman, Children of
Parting Parents 516 (1978).]
Other investigators have found that
there is an increased emotional dependence on
the custodial parent after divorce and that
children of all ages 'were in trouble' when
the home parent-child relationship was
affected by stress on the home-parent, such
as 'loneliness and discouragement.' J.
Wallerstein & J. Kelly, Surviving the Breakup
114, 224-225 (1980).
[Cooper, supra, 99 N.J. at 53-54.]
Since that time, social science research has uniformly confirmed the simple principle that, in general, what is good for the custodial parent is good for the child.
To be sure, the research also affirms the importance of a loving and supportive relationship between the noncustodial parent and the child. Frank F. Furstenberg & Andrew J. Cherlin, Divided Families: What Happens to Children When Parents Part 72 (1991); Michael E. Lamb, Fathers and Child Development: An Integrative View of the Role of the Father in Child Development (rev. ed. 1981); Janet R. Johnson, Children's Adjustment in Sole Compared to Joint Custody Families and Principles for Custody Decision Making, 33 Fam. & Conciliation Cts. Rev. 415, 419 (1995); Marsha Kline et al., Children's Adjustment in Joint and Sole Custody Families, 25 Develop. Psych. 430, 431 (1989). What it does not confirm is that there is any connection between the duration and frequency of visits and the quality of the relationship of the child and the noncustodial parent. Wallerstein, supra, 30 Fam. L.Q. at 312 (“There is no evidence in Dr. Wallerstein's work of many years, including the ten and fifteen year longitudinal study, or in that of any other research, that frequency of visiting or amount of time spent with the noncustodial parent over the child's entire growing-up years is significantly related to good outcome in the child or adolescent.”); see also Frank F. Furstenberg & Andrew J. Cherlin, Divided Families: What Happens to Children When Parents Part 72 (1991)(noting no connection between frequency of noncustodial visits and good outcomes for child). Although confidence that he or she is loved and supported by both parents is crucial to the child's well-being after a divorce, no particular visitation configuration is necessary to foster that belief. Ibid. According to scholars, so long as the child has regular communication and contact with the noncustodial parent that is extensive enough to sustain their relationship, the child's interests are served. Ibid.; Judith S. Wallerstein et al., The Unexpected Legacy of Divorce 215(2000). In short, a happy, productive, supportive custodial household along with a loving, sustaining relationship with the noncustodial parent are what is necessary to the adjustment of a child of divorce. Eleanor E. Maccoby & Robert H. Mnookin, Dividing the Child: Social and Legal Dilemmas of Custody (1992); E. Mavis Hetherington et al., Long- Term Effects of Divorce and Remarriage on the Adjustment of Children, 24 J. Amer. Acad. Child Psych. 518, 518 (1985).
As a result of all those factors, many courts have significantly eased the burden on custodial parents in removal cases. See In re Marriage of Francis, 919 P.2d 776, 784 (Colo. 1996)(creating presumption that custodial parent's choice to move children should generally be allowed); Sefkow v. Sefkow, 427 N.W.2d 203, 214 (Minn. 1988)(holding noncustodial parent has burden of showing move will endanger child or is meant to frustrate noncustodial parent's relationship with child); Auge v. Auge, 334 N.W.2d 393, 399 (Minn. 1983)(holding custodial parent is presumptively entitled to relocate); Fortin v. Fortin, 500 N.W.2d 229, 233 (S.D. 1993)(interpreting state statute as incorporating presumption for removal); Taylor v. Taylor, 849 S.W.2d 319, 332 (Tenn. 1993)(creating strong presumption in favor of custodial parent); Long v. Long, 381 N.W.2d 350, 352 (Wis. 1986)(holding removal permitted if custodial parent has good reason for moving).
The shift in relocation law is underscored in three fairly recent court decisions. Chris Ford, Untying the Relocation Knot: Recent Developments and a Model For Change, 7 Colum. J. Gender & L. 1, 17 (1997). In Tropea v. Tropea, 665 N.E.2d 145, 151 (N.Y. 1996), the New York Court of Appeals replaced the “exceptional circumstances” requirement with a general “best interests” test in relocation cases. Prior to Tropea, if a litigant could not prove exceptional circumstances justifying relocation, and the relocation would deprive the noncustodial parent of regular access, New York courts were compelled to deny the relocation request without considering the child's best interests. Id. at 149-50. Tropea changed direction and began a focus not on the needs and desires of the parents, but on the way those needs and desires relate to the child.
Likewise, in In re Marriage of Burgess, 913 P.2d 473, 481 (Cal. 1996), the California Supreme Court abandoned the prior hostile approach taken toward the custodial parent in relocation cases. The court rejected a rigid test that required a custodial parent to show a “necessity” for the move and said,
the 'necessity' of relocating frequently has little, if any, substantive bearing on the suitability of a parent to retain the role of a custodial parent. A parent who has been the primary caretaker for minor children is ordinarily no less capable of maintaining the responsibilities and obligations of parenting simply by virtue of a reasonable decision to change his or her geographical location.
The Colorado Supreme Court followed suit in In re Marriage of Francis, supra, 919 P. 2d at 782. There, the custodial parent sought to move east to attend school. Id. at 778. The trial court ruled that if she enrolled in the school program, she would lose custody of her children. Id. at 779. The Colorado Supreme Court reversed and held that the child's interests are so interwoven with the new family unit that a court must consider the custodial parent's interests:
[W]e find that the child's best interests are served by preserving the custodial relationship, by avoiding relitigation of custody decisions, and by recognizing the close link between the best interests of the custodial parent and the best interest of the child. In a removal dispute, this leads logically to a presumption that the custodial parent's choice to move with the children should generally be allowed.
Several cases are instructive regarding the import of the
“cause” provision of that statute. In Cooper, supra, 99 N.J. at
46, the trial court was faced with an application by a custodial
parent (the mother) to move to California to take advantage of a
business opportunity. Her former husband objected on the basis
that the reasons for the move were frivolous; that the children
had a deep connection to his close-knit east coast family; and
that he could not arrange blocks of time in his schedule to make
his former wife's visitation proposal realistic. Id. at 48. The
trial court allowed the move and the Appellate Division reversed.
Id. at 49.
We granted certification and began our opinion by
emphasizing that the purpose underlying N.J.S.A. 9:2-2 is
to preserve the rights of the noncustodial
parent and the child to maintain and develop
their familial relationship. This mutual
right of the child and the noncustodial
parent to develop and maintain their familial
relationship is usually achieved by means of
visitation between them. Because the removal
of the child from the state may seriously
affect the visitation rights of the
noncustodial parent, the statute requires the
custodial parent to show cause why the move
should be permitted.
[Id. at 50-51.]
However, citing D'Onofrio v. D'Onofrio,
144 N.J Super. 200
(Ch. Div.), aff'd o.b.,
144 N.J. Super. 352 (App. Div. 1976) and
Helentjaris v. Sudano,
194 N.J. Super. 220 (App. Div. 1984), we
also recognized a countervailing interest:
'[T]he family unity which is lost as a
consequence of the divorce is lost
irrevocably, and there is no point in
judicial insistence on maintaining a wholly
unrealistic simulation of unity.' [citations
omitted]. The realities of the situation
after divorce compel the realization that the
child's quality of life and style of life are
provided by the custodial parent. That the
interests of the child are closely interwoven
with those of the custodial parent is
consistent with psychological studies of
children of divorced or separated parents.
We further stated that
[t]he custodial parent who bears the burden and responsibility for the child is entitled, to the greatest possible extent, to the same freedom to seek a better life for herself or himself and the children as enjoyed by the noncustodial parent.
When removal is challenged under N.J.S.A. 9:2-2, we hold that to establish sufficient cause for the removal, the custodial parent initially must show that there is a real advantage to that parent in the move and that the move is not inimical to the best interests of the children. . . . It is only after the custodial parent establishes these threshold requirements that the court should consider, based on evidence presented by both parties, visitation and other factors to determine whether the custodial parent has sufficient cause to permit removal under the statute. . . .
* * *
The first factor to be considered is the prospective advantages of the move in terms of its likely capacity for either maintaining or improving the general quality of life of both the custodial parent and the children. The second factor is the integrity of both the custodial parent's motives in seeking to move and the noncustodial parent's motives in seeking to restrain such a move (e.g., whether the custodial parent is motivated by a desire to defeat and frustrate the noncustodial parent's visitation rights and remove himself or herself from future visitation orders or whether the noncustodial parent is contesting the move mainly to impede the custodial parent's plans or to secure a financial advantage with respect to future support payments). And the third factor is whether, under the facts of the individual case, a realistic and reasonable visitation schedule can be reached if the move is allowed. In a given case, evidence of any of these factors may be used to militate against either the threshold showing of the custodial parent for removal, or the arguments of the noncustodial parent against removal.
Since the noncustodial parent has the necessary information to demonstrate that an alternative visitation schedule is not feasible because of distance, time, or financial restraints, we place the burden on that parent to come forward with evidence that a proposed alternative visitation schedule would be impossible or so burdensome as to affect unreasonably and adversely his or her right to preserve his or her relationship with the child.
In Cooper, we specifically noted that the advantages of the move should not be sacrificed solely to maintain the “same” visitation schedule where a reasonable alternative visitation scheme is available and the advantages of the move are substantial.
Four years later, we revisited the issue of removal. In Holder, supra, 111 N.J. at 347, the custodial parent (a mother) requested permission from the trial court to allow her to move to Connecticut because she wanted to live near family members who could provide her with emotional and financial support, she had a job offer in Connecticut and also planned to attend college there. Ibid. The trial court denied the mother's request because she failed to make the threshold showing that there was a “real advantage” to the move. Id. at 351. Specifically, the court held that she failed to establish that the cost of living was lower in Connecticut or that superior housing, educational opportunities, job opportunities, or child care were available there. Ibid. Thus, even though the move was not inimical to the best interests of the children, the trial court held that the personal satisfaction and emotional support for the custodial parent were not enough to satisfy the “real advantage” test. Ibid. The Appellate Division affirmed. Ibid.
We granted certification and began our analysis by underscoring what we had recognized in Cooper - that after divorce, the family unit is forever altered and that it is the reality of that changed family structure that must be accounted for in a removal case. Id. at 349. Focusing on the liberty interests of custodial parents and the fundamental inequity that emerges out of a scheme that holds a custodial parent in this state while allowing a noncustodial parent complete freedom of movement, we said:
As men and women approach parity, the question arises when a custodial mother wants to move from one state to another, why not? Until today, our response has included the requirement that the custodial parent establish, among other things, a real advantage to that parent from the move. Cooper v. Cooper, 99 N.J. 42, 56, 491 A.2d 606 (1984). We now modify that requirement and hold that a custodial parent may move with the children of the marriage to another state as long as the move does not interfere with the best interests of the children or the visitation rights of the noncustodial parent.
More particularly, we revisited Cooper and held that “any sincere, good-faith reason will suffice, and that a custodial parent need not establish a “real advantage from the move.” Id. at 352-53.
Motives are relevant, but if the custodial parent is acting in good faith and not to frustrate the noncustodial parent's visitation rights, that should suffice. Maintenance of a reasonable visitation schedule by the noncustodial parent remains a critical concern, but in our mobile society, it may be possible to honor that schedule and still recognize the right of a custodial parent to move. In resolving the tension between a custodial parent's right to move and a noncustodial parent's visitation rights, the beacon remains the best interests of the children.
That modification recognized that, because the real advantage test was too great a burden, the Cooper calculus had failed in its intent to allow custodial parents the same freedom enjoyed by noncustodial parents to seek a better life. Expressing the Cooper standard in Holder terms, removal should not be denied solely to maintain the same visitation schedule where a reasonable alternative visitation scheme is available and there are good faith reasons for the move.
Under Holder it is not any effect on visitation, but an adverse effect that is pivotal. 111 N.J. at 352. An adverse effect is not a mere change or even a lessening of visitation; it is a change in visitation that will not allow the noncustodial parent to maintain his or her relationship with the child. Such a change implicates what Holder describes as a best interest analysis, although not the classic one: “The emphasis . . . should be not on whether the children or the custodial parent will benefit from the move, but on whether the children will suffer from it.” Id. at 353. Implicit in that aspect of Holder is the notion that a visitation schedule that will not maintain the relationship of the noncustodial parent and the child would cause the child to suffer.
It would be fair to say that together Cooper and Holder
elucidated the general philosophy underpinning the removal scheme of N.J.S.A. 9:2-2. It is equally fair to say that those decisions left open questions. For example, although the cases following Cooper and Holder are clear about the custodial parent's burden of proving good faith, they are unclear and at variance regarding the burden of going forward, the ultimate burden of proof, and the elements of the burden in determining whether the move would be inimical to the interests of the child. That is particularly true when visitation is the nub of the noncustodial parent's objection. Thus, Cerminara v. Cerminara, 286 N.J. Super. 448 (App. Div. 1996), Winer v. Winer 241 N.J. Super. 510 (App. Div. 1990), and Murnane v. Murnane, 229 N.J. Super. 520 (App. Div. 1989), all declared that it is the burden of the custodial parent to prove a good faith reason for the move. However, Murnane then added to the custodial parent's burden the obligation to “offer evidence” of a practical alternative visitation schedule and held that the noncustodial parent has the burden of “coming forward” with evidence that the proposed schedule would be unworkable and would “adversely affect” his relationship with the child. Murnane, supra, 229 N.J.Super. at 531.
In Winer, a different panel of the Appellate Division held that once the party seeking removal establishes a good faith reason for the move, “[t]he burden remains with the noncustodial parent to prove that as a result of relocation, visitation will be affected in a way that will prove harmful to the child[ren].” Winer, supra, 241 N.J. Super. at 518 (emphasis added). In Cerminara, the court set forth the scheme this way:
Under the Holder test, 'a custodial parent may move with the children of the marriage to another state as long as the move does not interfere with the best interests of the children or the visitation rights of the noncustodial parent.' Id. at 349, 544 A.2d 852. All the custodial parent need establish is that he or she has a 'good-faith reason' for making the move. Id. at 353, 544 A.2d 852. In short, absent 'an adverse effect on the noncustodial parent's visitation rights or other aspects of a child's best interests, the custodial parent should enjoy the same freedom of movement as the noncustodial parent.' Id. at 352, 544 A.2d 852.
Roiling the waters, McMahon v. McMahon, 256 N.J. Super. 524, 528 (Ch. Div. 1991) has held that the Cooper/Holder removal scheme applies in a joint physical custody situation while Voit v. Voit, 317 N.J. Super. 103, 106 (Ch. Div. 1998), has held that it does not. See also Chen v. Heller, 334 N.J. Super. 361, 378- 79 (App. Div. 2000)(upholding the Voit analysis). Further, at least one commentator writing on the subject of removal in New Jersey has characterized our cases as creating a “rebuttable presumption” in favor of relocation. Carol S. Bruce & Janet M. Bowermaster, The Relocation of Children and Custodial Parents: Public Policy Past and Present, 30 Fam. L.Q. 245, 283 (1996). Our task is to clarify those matters.
IV
In order to describe the template for a removal case, some preliminary observations are in order. A removal case is entirely different from an initial custody determination. When initial custody is decided, either by judicial ruling or by settlement, the ultimate judgment is squarely dependent on what is in the child's best interests. N.J.S.A. 9:2-4; see Kinsella v. Kinsella, 150 N.J. 276, 317 (1997) (stating that in custody determination “the primary and overarching consideration is the best interest of the child”); Fantony v. Fantony, 21 N.J. 525, 536 (1956)(“Our law in a cause involving the custody of a minor child is that the paramount consideration is the safety, happiness, physical, mental and moral welfare of the child.”). Whoever can better advance the child's interests will be awarded the status of custodial parent.
Removal is quite different. In a removal case, the parents' interests take on importance. However, although the parties often do not seem to realize it, the conflict in a removal case is not purely between the parents' needs and desires. Rather, it is a conflict based on the extent to which those needs and desires can be viewed as intertwined with the child's interests. Cooper, and more particularly, Holder, recognize that subtlety by according special respect to the liberty interests of the custodial parent to seek happiness and fulfillment because that parent's happiness and fulfillment enure to the child's benefit in the new family unit. At the same time those cases underscore the importance of the child's relationship with the noncustodial parent and require a visitation schedule sufficient to support and nurture that relationship. The critical path to a removal disposition therefore is not necessarily the one that satisfies one parent or even splits the difference between the parents, but the one that will not cause detriment to the child.
One final important point is that the Cooper/Holder scheme is entirely inapplicable to a case in which the noncustodial parent shares physical custody either de facto or de jure or exercises the bulk of custodial responsibilities due to the incapacity of the custodial parent or by formal or informal agreement. In those 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. Chen, supra, 334 N.J. Super. at 381-82. Obviously then, the preliminary question in any case in which a parent seeks to relocate with a child is whether it is a removal case or whether by virtue of the arrangement between the parties, it is actually a motion for a change in custody.
Obviously not all factors will be relevant and of equal weight in every case. For example, in a case in which the parties have no extended family in either location, that factor will not be considered. Likewise, when the children are not of the age of reason, consent will not come into play. Contrariwise, if the focus of the challenge to removal is the inadequacy of the out-of-state health or educational facilities, that factor will take on greater significance. It is likely that the main objection that will be lodged by the majority of noncustodial parents will be the change in the visitation structure thus, that will be the primary factor for consideration in most cases.
Again, a mere change, even a reduction, in the noncustodial parent's visitation is not an independent basis on which to deny removal. It is one important consideration relevant to the question of whether a child's interest will be impaired, although not the only one. It is not the alteration in the visitation schedule that is the focus of the inquiry. Indeed, alterations in the visitation scheme when one party moves are inevitable and acceptable. If that were not the case, removal could never occur and what Cooper and Holder attempted to achieve would be illusory.
We reiterate, however, the importance of mutual efforts to develop an alternative visitation scheme that can bridge the physical divide between the noncustodial parent and the child. By mutual is meant that the noncustodial parent is not free to reject every scheme offered by the custodial parent without advancing other suggestions. Innovative technology should be considered where applicable, along with traditional visitation initiatives. In many cases, vacations, holidays, school breaks, daily phone calls, and E-mail, for example, may sustain a parent- child relationship as well as alternate weekends. No set scheme can ever guarantee a relationship. What is necessary is that communication and visitation is extensive enough to maintain and nurture the connection between the noncustodial parent and the child.
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 noncus