(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 21, 1998 -- Decided February 24, 1998
PER CURIAM
The issue raised on this appeal is whether the trial court properly denied the motion of Andrew
Levine, the custodial parent of Jessica Levine, to move Jessica to Florida.
Andrew Levine and Rosemary Levine Bacon were married on March 17, 1988. Jessica, the parties'
only child, was born on October 6, 1988. In 1990, Andrew Levine filed for divorce. A Final Judgment of
Divorce was entered providing for joint custody of Jessica, with Andrew as the primary residential parent.
Rosemary was ordered to pay child support. The judgment also provided for Rosemary's visitation schedule
- a combination of weekend and mid-week visits, two weeks summer vacation, and alternating holidays.
In 1992, Andrew married Valerie Levine. The couple live in Princeton. Rosemary married Dylan
Bacon in 1994 and they have a daughter Savannah, who was born on August 3, 1993. The Bacons live in
South Brunswick. Dylan is employed as a superintendent of an apartment complex and receives a salary of
$17,000 per year, housing for the family of an estimated value of $1000 per month and health insurance. At
the time of the trial, Rosemary was unemployed, staying at home to care for her daughter Savannah. Since
the trial, the Bacons have had another daughter and Rosemary is a part-time manicurist.
For thirteen years, Andrew managed a dry cleaning plant owned by his father. In November 1994,
Andrew's father sold the business and, as a condition of that sale, Andrew signed a covenant not to compete.
According to Andrew, he was unable to continue working with the new owners of the cleaning business and
could not find a dry cleaning plant manager position in the counties not precluded by the covenant not to
compete.
Andrew was offered a job with a Florida company selling software systems used by dry cleaners.
Andrew plans to sell his New Jersey home and purchase one near Sarasota, Florida, which is twenty minutes
from both his and Rosemary's parents' homes.
Andrew asked Rosemary to move her family to Florida, but she refused. In the alternative, Andrew
proposed a parenting time schedule that includes several week long visits throughout the year. Andrew also
suggested that Rosemary spend the money that would otherwise go to child support on airfare. Rosemary
contends that she cannot afford frequent trips to Florida and that the proposed visitation is insufficient.
Rosemary is already behind in her child support payments.
On February 2, 1995, Andrew filed a motion seeking permission to move with Jessica to Florida.
The court appointed an expert and the Mercer County Probation Department to do a removal and custody
evaluation. After a three-day hearing, the trial court denied Andrew's motion to remove Jessica to Florida.
The court found Andrew's reasons for the move sincere, but concluded that the move would be inimical to
Jessica's best interests. The court found that the demands of Rosemary's new family would make it
impossible for her to exercise her parenting rights under the parenting time schedule, that Rosemary would
be unable to afford the cost of the trips to Florida, and that it would not be feasible for Rosemary's family to
move to Florida.
On appeal, a majority of the Appellate Division agreed with the trial court that the move would be
inimical to Jessica's best interests and would adversely affect Rosemary's important visitation rights. The
court noted Jessica's close relationship with her mother, sisters, and nearby cousins. The court also found
that the proposed schedule was not feasible, in light of Rosemary's financial constraints and familial
obligations. In addition, the court concluded that distance between the two states is so great that it would
interfere substantially with Rosemary's relationship with Jessica. Judge Kleiner dissented, concluding that the
case should be remanded because the trial court failed to consider other possible visitation schedules.
Andrew Levine appealed to the Supreme Court as of right based on the dissent in the Appellate
Division.
HELD: The trial court properly denied the motion of Andrew Levine, the custodial parent of Jessica Levine,
to move Jessica to Florida.
1. N.J.S.A 9:2-2 provides that a minor child may not be removed by a custodial parent unless cause is
shown. The term "cause" was defined in Cooper v. Cooper to require the custodial parent to show that there
is a real advantage to the parent in the move and that the move is not inimical to the best interests of the
children. After cause is shown, the court must consider the prospective advantages of the move in terms of
its likely capacity of either maintaining or improving the general quality of life of both custodial parent and
the children; the motives of both parents; and whether a reasonable parenting schedule can be maintained.
In Holder v. Polanski, the Court modified the requirement that a custodial parent establish a real advantage
to the move, holding that any good faith reason to move will suffice. The parent may move as long as the
move does not interfere with the best interests of the children or the parenting time of the non-custodial
parent. (pp. 4-5)
2. A trial court should not limit itself to considering the first parenting time schedule offered by the parent.
Alternative parenting time schedules should be submitted by the parties and courts should suggest other
possible schedules. Changed circumstances and the passage of time are relevant factors that should be
considered in determining parenting schedules. Courts should consider referring such issues to mediation.
(pp 5-7)
3. The trial court's consideration of the parties' financial limitations on the ability to exercise parenting time
was appropriate. The financial burden would remain no matter what alternative schedule was developed.
Therefore, the trial court did not abuse its discretion in finding that the proposed move and any other
schedule would not be in Jessica's best interest. (pp. 7-8)
Judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, STEIN and
COLEMAN join in this PER CURIAM opinion.
SUPREME COURT OF NEW JERSEY
A-
92 September Term 1997
ANDREW LEVINE,
Plaintiff-Appellant,
v.
ROSEMARY LEVINE BACON,
Defendant-Respondent.
Argued January 21, 1998 -- Decided February 24, 1998
On appeal from the Superior Court, Appellate
Division, whose opinion is reported at
297 N.J. Super. 224 (1997).
Drew M. Hurley argued the cause for
appellant.
Jennifer Weisberg Millner argued the cause
for respondent (Szaferman, Lakind, Blumstein,
Watter & Blader, attorneys).
PER CURIAM
We affirm the Appellate Division's decision that the trial court properly denied the motion of Andrew Levine, the custodial parent of Jessica Levine, to move Jessica to Florida. 297 N.J.
Super. 224 (1997). We add only the following observations to the
Appellate Division's comprehensive opinion.
Plaintiff, Andrew Levine, and defendant, Rosemary Levine, Bacon were married on March 17, 1988. Jessica, the parties' only child, was born on October 6, 1988. In 1990, Andrew filed for divorce. A Final Judgment of Divorce was entered providing for joint custody of Jessica, with Andrew as the primary residential parent. Rosemary was ordered to pay child support. The judgment also established Rosemary's parenting time schedule, granting Rosemary a combination of weekend and midweek visits, two weeks summer vacation, and alternating holidays.
In 1992, Andrew married Valerie Levine, a psychologist. They live in Princeton. Rosemary married Dylan Bacon in 1994 and they have a daughter Savannah, who was born on August 3, 1993. The Bacons live in South Brunswick. Dylan is employed as the superintendent of an apartment complex where he receives a salary of $17,000 per year, housing for the family of an estimated value of $1000 a month, and health insurance. At the time of the trial, Rosemary was unemployed and an at-home mother for her daughter, Savannah. Since the trial, the Bacons have had another daughter, and Rosemary is now a part-time manicurist.
For thirteen years, Andrew managed a dry cleaning plant owned by his father. In November 1994, his father sold the business. As a condition of that sale, Andrew signed a covenant not to compete. Andrew claims that there was no possibility of
continuing his employment with the new owners of the cleaners and
that he could not find a dry cleaning plant manager position in
those counties not precluded by the covenant.
Clean Pro, a Florida company, offered Andrew a position
selling software systems used by dry cleaners. Andrew expects to
move into a sales management position eventually, and claims that
if he could find a similar position in New Jersey he would stay.
Andrew plans to sell his home in New Jersey and buy one near
Sarasota, Florida, which is twenty minutes from his parents' and
Rosemary's parents' homes.
Andrew asked Rosemary to move her family to Florida, but she
refused. Therefore, Andrew proposed an alternative parenting
time schedule that includes several week-long visits throughout
the year. Andrew also suggested that Rosemary could spend the
money that would otherwise go to child support on airfare.
Rosemary, however, argues that she cannot afford frequent trips
to Florida and that the visitation would be insufficient.
Rosemary is in arrears in her child support obligation.
On February 2, 1995, Andrew filed a motion seeking
permission to move with Jessica to Florida. The court appointed
an expert and the Mercer County Probation Department to do a
removal and custody evaluation. After a three-day hearing, the
trial court denied Andrew's motion to move with Jessica to
Florida. Although the court found that Andrew's reasons for the
move were sincere, it concluded that the move would be inimical
to Jessica's best interest. The court found that the demands of
Rosemary's new family would make it impossible for Rosemary to
exercise her parenting time rights under the parenting time
schedule, that Rosemary would be unable to afford the cost of the
trips to Florida, and that it would not be feasible for
Rosemary's family to move to Florida.
The Appellate Division agreed with the trial court that the
move would "be inimical to Jessica's best interests and adversely
affect defendant's important visitation rights." 297 N.J. Super.
at 243. The court noted Jessica's close relationships with
defendant, Dylan, Savannah, and her nearby cousins. The court
emphasized "[t]he dramatic change in the amount and quality of
time that defendant and Jessica would be able to spend together,"
concluding that it would "undoubtedly cause Jessica to suffer."
Id. at 244. Furthermore, the court found that the proposed
schedule was not feasible because of defendant's financial
constraints and familial obligations. Ibid. The distance
between Florida and New Jersey is so great that in light of
defendant's limited financial resources and her familial
responsibilities, the move would substantially interfere with
defendant's relationship with Jessica. Id. at 245-46. Judge
Kleiner dissented, concluding that the case should be remanded
because of the trial court's failure "to consider other possible
visitation schedules." Id. at 248.
N.J.S.A. 9:2-2 provides that a minor child may not be removed by the custodial parent unless cause is shown. In Cooper
v. Cooper,
99 N.J. 42, 56 (1984), the term "cause" was defined to
require the custodial parent to 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." Also, the Court
held that after cause is shown for the move, the court must
consider "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 motives of both parents; and whether a reasonable parenting
time schedule can be arranged. Id. at 56-57.
In Holder v. Polanski,
111 N.J. 344, 352-53 (1988), we
modified the requirement set forth in Cooper, supra, 99 N.J. at
56 that a custodial parent establish a real advantage to move,
and held that any good faith reason to move will suffice. Also,
the court held that a parent may move the children if the move
does not interfere with the best interest of the children or the
parenting time of the noncustodial parent.
Since Holder and Cooper, lower courts have arrived at
different conclusions depending on the facts of each case.
Courts have rejected removal applications on the ground that
extended periods of parenting time are not adequate substitutes
for frequent contact between parent and child. See Zwernemann v.
Kenny,
236 N.J. Super. 37, 45 (Ch. Div. 1988), aff'd,
236 N.J.
Super. 1 (App. Div. 1989); McMahon v. McMahon,
256 N.J. Super. 524 (Ch. Div. 1991). On the other hand, courts have also
emphasized that the burden of proving that a parenting time
schedule would be too burdensome is on the noncustodial parent.
See Murname v. Murname,
229 N.J. Super. 520, 531 (App. Div.
1989). Also, in considering the financial burden imposed by the
transportation necessitated by the move, courts have considered
the possibility of reducing child support or applying arrearages
to travel costs. See Harris v. Harris,
235 N.J. Super. 434, 451-52 (Ch. Div. 1989), overruled on other grounds, Ohlhoff v.
Ohlhoff,
246 N.J. Super. 1 (App. Div. 1991); Murname, supra, 229
N.J. Super. at 530-31.
In Winer v. Winer, the Appellate Division held that, in
denying the mother permission to relocate to Atlanta, the trial
court had failed adequately to consider alternative parenting
time schedules.
241 N.J. Super. 510 (1990). Although the court
agreed the move would adversely affect the father's parenting
time, it held that the father had failed to satisfy his burden to
produce evidence about an alternative schedule. Likewise, in
Horsewell v. Horsewell,
297 N.J. Super. 94, 103 (1997), the
Appellate Division criticized the trial court for not considering
the benefits derived from living elsewhere, and for failing to
balance the benefits against the adverse effects of the move.
Also, the court criticized the trial court's failure to consider
whether changes could be made to the parenting time schedule to
enable the children to visit more often. Ibid.
Although we do not agree with the dissenting member of the
Appellate Division panel that Holder required the trial court to
examine sua sponte other possible parenting time schedules, 287
N.J. Super. at 253, we do agree that the trial court should not
limit itself to considering the first parenting time schedule
offered by the parent. Alternative parenting time schedules
should be submitted by the parties and courts should suggest
other possible schedules. Changed circumstances and the passage
of time are relevant factors that should be considered in
determining parenting time schedules.
Courts should consider referring such issues to mediation.
Mediation has proven to be a useful tool in resolving custody and
visitation matters. It allows the parties to arrive at a
solution that satisfies both their needs. Indeed, Rule 1:40-5(a)
requires that complaints or motions involving a genuine custody
or visitation issue shall be referred to mediation for
"resolution in the child's best interests." In each vicinage
mediation is available to help resolve custody and parenting time
disputes. Of course, some parenting time disputes will not be
solved by mediation and will go to court, as in this case.
The trial court considered plaintiff's proposed parenting time schedule and found it to be inadequate to preserve Jessica's relationships with her mother and sister. In reaching that conclusion, the trial court considered Rosemary's family situation, the distance and time required for travel between New Jersey and Florida, and the financial constraints of both parties. The trial court's consideration of the parties'
financial limitations on the ability to exercise parenting time
was entirely appropriate. Winer, supra, 241 N.J. Super. at 521;
Harris, supra, 235 N.J. Super. at 451-52. There would be a great
financial burden no matter what schedule was developed. Even if
the trips were lengthened, the costs would still be substantial.
Although plaintiff has offered to pay some of the costs, his
financial resources do not allow him to defray the costs. The
financial burden would remain no matter what alternative schedule
was developed. Consideration of those factors led the trial
court to find that this proposed move and any other schedule
would not be in Jessica's best interest. The trial court,
therefore, did not abuse its discretion.
The judgment of the Appellate Division is affirmed.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN,
GARIBALDI, STEIN, and COLEMAN join in this PER CURIAM opinion.
NO. A-92 SEPTEMBER TERM 1997
ON APPEAL FROM Appellate Division, Superior Court
ON CERTIFICATION TO
ANDREW LEVINE,
Plaintiff-Appellant,
v.
ROSEMARY LEVINE BACON,
Defendant-Respondent.
DECIDED February 24, 1998
Chief Justice Poritz PRESIDING
OPINION BY PER CURIAM
CONCURRING OPINION BY
DISSENTING OPINION BY