Cooper v. Cooper

491 A.2d 606, 99 N.J. 42, 1984 N.J. LEXIS 3264

Opinions

The opinion of the Court was delivered by

GARIBALDI, J.

This appeal concerns N.J.S.A. 9:2-2, which provides in pertinent part that the custodial parent shall not remove minor children from this jurisdiction “without the consent of both parents, unless the court, upon cause shown shall otherwise order.” (emphasis added). Specifically, the issue is what constitutes an adequate showing of “cause” for a court to allow the custodial parent to remove the children from New Jersey over the noncustodial parent’s objection.

I

The parties, Karen W. Cooper (Karen) and Norton J. Cooper (Norton), were married in 1970, separated in 1977, and divorced in 1980. Two children were born of their marriage, Toby Cooper, born December 8, 1974, and Robert James Cooper, born August 3, 1976. Karen was granted custody of the children. An agreement between the parties, incorporated in the divorce judgment, provides, “HUSBAND shall have reasonable visitation with said children” and “[i]n the event that she wishes to change her residence, she agrees to obtain the consent of HUSBAND or a court of competent jurisdiction to said move and to make arrangements to assure that HUSBAND has appropriate visitation of the children.”

In accordance with the terms of the Settlement Agreement, Karen in 1982 filed a Notice of Motion for modification of the Final Judgment of Divorce, seeking the court’s permission to remove the children from New Jersey and take them to the San Diego area of California. Norton cross-moved for an order enjoining Karen from removing the children from New Jersey. A hearing was held on Karen’s motion as well as Norton’s cross-motion.

The first reason Karen gave for her desire to move concerns her belief that since the children were prone to colds, ear infections, and other respiratory problems, southern California would be a healthier climate for the children than New Jersey. Although she presented no evidence that the boys suffer from any significant respiratory problems, she was convinced that California would provide a healthier environment. Karen also presented evidence that the quality of life for the children would be at least equal to and perhaps better than that offered in Princeton since their housing, schooling, and activities would be comparable, and possibly enhanced by an improved climate.

Both children indicated to the trial court that they have friends in the Princeton area and at school, but did not indicate any great enthusiasm for either, nor did they indicate a preference for Princeton over California. Both parents agreed that the children were doing well in school and were well adjusted. Norton agreed that Karen and her mother were doing a splendid job in raising the children. Karen’s mother, who has resided with her for approximately four-and-one-half years, would continue to live with her and the children in California.

The second reason Karen gave for wanting to move concerns a business opportunity in California. Karen has been offered a job working for a distributor of Mountain Valley Spring Water. The job is based on a trial period. If Karen successfully completes the trial period, she will enter into a partnership with the present San Diego distributor. This partnership would eventually result in her own distributorship and a good income.

In her affidavit in support of her motion for modification of the Divorce Decree, Karen also claimed that she was dating a man in the La Jolla, California area who wished to marry her. However, she wanted to know him better to be certain that she wished to marry him. Despite the reliance on this point by our concurring colleague, this issue was not pursued by either party nor considered by either of the courts below as a factor to be weighed in determining whether Karen should be allowed to move to California with the children.

Karen is 45 years old, has a fine arts degree from the University of Iowa, and last worked outside the home in 1978. Karen had made minimal and unsuccessful efforts to find employment and business opportunities in the Princeton area. Given her lack of business skills and experience, Karen found the franchise business an attractive employment opportunity because she could pursue it indefinitely and it was a relatively simple enterprise for which she did not need any specialized skills except selling.

Further, Karen testified that the children’s relationship with their father would not be adversely affected by the move but might be improved because the children would be available to visit him 128 days per year, which compared favorably with the current visitation schedule. Karen calculated these days from the children’s summer, spring, and Christmas vacations, and argued that extended periods of visitation might be better for the children than the present pattern of weekend visitation.

Norton presented no evidence contradicting Karen’s claims as to the quality of life in California and her business opportunity. Instead, Norton opposed Karen’s motion on the grounds that her reasons for moving were frivolous and that his Philadelphia-based business would not permit him to spend enough time in San Diego to carry on his previously close relationship with his sons.

Norton is a highly mobile businessman. He is president and majority stockholder of a liquor company with annual sales of approximately $80 million. Although his company’s home office is in Philadelphia, he lives in an apartment in New York City, and his residence for voting and for “tax purposes” is Florida, where he has a hotel room. His company car is registered in Pennsylvania and he has a Florida driver’s license. He travels constantly from Monday through Friday all year round, but visits his children on most weekends.¹ He travels to the west coast about three times a year, spending two or three days at a time there but not in the San Diego area.

Norton testified that he could not alter his business schedule, to make blocks of time available to accommodate his children, without making a significant financial sacrifice, adversely affecting the alimony and support that he would be able to pay Karen and the children. Finally, Norton claimed that he has a large, close-knit family in the Philadelphia area and that the boys benefit from contact with this family, especially their aunts and cousins.

The trial court ruled that Karen would be permitted to remove the children from Princeton, New Jersey to San Diego, California. The Appellate Division reversed the trial court and imposed the further restriction that Karen be prohibited from relocating or from removing the children beyond a 100-mile radius of New York City.

We granted Karen’s petition for certification. 96 N.J. 294 (1984). We now reverse the judgment of the Appellate Division and remand to the trial court for a rehearing of the motion and a determination consistent with this opinion.

II

N.J.S.A. 9:2-2 provides that children of divorced parents should not be removed from this jurisdiction without the consent of the noncustodial parent “unless the court, upon cause shown, shall otherwise order.” N.J.S.A. 9:2-2;² see Helentjaris v. Sudano, 194 N.J.Super. 220 (App.Div.1984); Middlekauff v. Middlekauff, 161 N.J.Super. 84 (App.Div.1978); D’Onofrio v. D’Onofrio, 144 N.J.Super. 200 (Ch.Div.), aff’d o.b., 144 N.J.Super. 352 (App.Div.1976).

The predecessor of the present statute was enacted in 1902 as part of general reform legislation dealing with the custody of children.³ Although there is no specific legislative history-concerning the purpose of the statute, the cases decided under the 1902 statute support the conclusion that its purpose was to preserve the right of visitation between the noncustodial parent and the child after the custody award. In Dixon v. Dixon, 72 N.J. Eq. 588 (Ch.1907), for example, the mother had been awarded custody of the children in New Jersey but the father had weekly visitation rights of which he regularly availed himself. The mother moved the children to Maine without securing court approval. The court held under the predecessor to N.J.S.A. 9:2-2 that:

It does not appear that it would be for the welfare of the children that he [the father] should not continue to see and interest himself in them. The strong presumption is that he should. I think the mother ought not to deprive the father of the opportunity of seeing them at short intervals, as she would do if she could keep them permanently in Maine. [Id. at 594.]

Since it was unclear whether the mother had moved to Maine permanently, the court ordered a new hearing on that point. See also Francisco v. Francisco, 73 N.J.Eq. 313, 317 (Ch.1907) (recognizing father’s right to visit his children in this state).

The statutory language affirms that the purpose of the statute 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. Because the legislation and the cases are silent as to what kind of and how much cause must be shown, we must decide that issue today.

The courts of other states have considered the issue of removal but have differed on what constitutes sufficient cause for removal. Several of these states have anti-removal statutes similar to N.J.S.A. 9:2-2. See Ill.Rev.Stat. ch. 40, § 609 (1977); Mass.Gen.Laws Ann. ch. 208, § 30 (West 1981); Minn.Stat. § 518.175(3) (Supp.1981); and S.D. Codified Laws Ann. § 25-5-13 (1981).

In Minnesota, the custodial parent’s right to remove a child from the jurisdiction is limited only by the court’s power to restrain removal when it would prejudice the rights of the child. In Auge v. Auge, 334 N.W.2d 393 (Minn.1983), for example, the Minnesota Supreme Court held that a custodial parent's motion to remove a child from the jurisdiction should be granted unless the noncustodial parent established, by a preponderance of the evidence, that the move would not be in the best interests of the child. One reason that the Minnesota court took such a liberal stance on removal was that

[i]n the past, removal was commonly denied because of the potential loss of jurisdiction over custody issues. This concern has largely been met by adoption in 44 states of the Uniform Child Custody Jurisdiction Act. See, e.g., Minn.Stat. §§ 518A.01-.25 (1982). See generally Coombs, Interstate Child Custody: Jurisdiction, Recognition, and Enforcement, 66 Minn.L.Rev. 711 (1982). Further protection of the rights of both parents is afforded by the Parental Kidnapping Prevention Act of 1980, 28 U.S.C. § 1738A (Supp. V 1981).

[Id. at 399.]

Other states allow the child to accompany the custodial parent whenever the custodian has a legitimate reason and the move is consistent with the best interests of the child. See In re Marriage of Brady, 115 Ill.App.3d 521, 71 Ill.Dec. 297, 450 N.E.2d 985 (App.Ct.1983) (custodial parent makes prima facie showing by demonstrating a desire to move, a sensible reason for the move, and “some showing that the move is in the best interests of the child.”); Jafari v. Jafari, 204 Neb. 622, 624, 284 N.W.2d 554, 555 (1979) (“The general rule in cases where a custodial parent wishes to leave the jurisdiction for any legitimate reason is that the minor children will be allowed to accompany the custodial parent if the court finds it to be in the best interests of the children to continue to live with that parent.”); In re Matter of Ehlen, 303 N.W.2d 808, 810 (S.D.1981) (“The majority of cases dealing with removal of a child from the jurisdiction support the rule that if a parent who has custody of a child has good reason for living in another state, removal will be permitted, providing such a move is consistent with the best interests of the child.”); see also Hutchins v. Hutchins, 84 Mich.App. 236, 238, 269 N.W.2d 539, 540 (Ct.App.1978) (decision whether to allow removal should be based on best interests .of the child standard as mandated by Mich.Comp.Laws § 722.23).

In New York, on the other hand, “[disruption of the relationship between the noncustodial parent and the marital issue by relocation of the custodial parent in a distant jurisdiction will not be permitted unless a compelling showing of ‘exceptional circumstances’ * * * or a ‘pressing concern’ for the welfare of the custodial parent and child * * * is made warranting removal of the child to a distant locale.” Courten v. Courten, 92 A.D.2d 579, 580, 459 N.Y.S.2d 464, 466 (App.Div.1983) (citations omitted).

The vast majority of states fall between Minnesota, which requires no showing of cause by the custodial parent if the noncustodial parent fails to present specific evidence that the move would not be in the child’s best interest, and New York, which requires the custodial parent to show “exceptional circumstances” before removal should be approved. Most states, recognizing the sensitive and extraordinary importance ■ of a decision affecting a parent-child relationship, attempt to balance the interests of the child in having fulfilling relationships with both parents, the custodial parent’s right to settle wherever he or she pleases, and the right of the noncustodial parent to maintain a relationship with his or her children through regular visitation. These determinations are not easily subjected to clear, bright-line tests but must be made on a case-by-case basis, depending, to a great extent, upon the circumstances of each ease. See Dozier v. Dozier, 167 Cal.App.2d 714, 334 P.2d 957 (Dist.Ct.App.1959); Bell v. Bell, 112 So.2d 63 (Fla.Dist.Ct.App.1959); Good v. Good, 79 Idaho 119, 311 P.2d 756 (1957); Hale v. Hale, 12 Mass.App.Ct. 812, 429 N.E.2d 340 (1981).

Ill

While this Court has not addressed the issue of when a court should allow removal of children from the state by the custodial parent, Judge Pressler’s decision in D’Onofrio, supra, 144 N.J.Super. 200, is the leading case in this area. In both of the other New Jersey Appellate Division decisions interpreting N.J.S.A. 9:2-2, the courts have applied the standards set down in D’Onofrio. See Helentjaris v. Sudano, supra, 194 N.J.Super. 220; Middlekauff v. Middlekauff, supra, 161 N.J.Super. 84. In the present case both the trial court and the Appellate Division sought to apply the D’Onofrio standard but came to different conclusions based on their application of that standard to this case.

In D’Onofrio the court, in a thoughtful discussion, analyzed the considerations and the competing interests that must be weighed in a court’s determination of whether removal should be permitted. Crucial to the D’Onofrio decision is the realization that after a divorce a child’s subsequent relationship with both parents can never be the same as before the divorce when the family lived together. As stated in Helentjaris, supra, 194 N.J.Super. 220, “[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 similation of unity.” Id. at 229. 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. 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).

Because the best interests of a child are so interwoven with the well-being of the custodial parent, the determination of the child’s best interest requires that the interests of the custodial parent be taken into account. It is on this fundamental point that we disagree with the concurring opinion. We do not, as the concurrence alleges, equate the best interests of the child with the best interests of the custodial parent. We do maintain, however, that a determination of the best interests of the child requires taking into account the interests of the custodial parent. The concurrence’s insistence that determination of a child’s best interest should be made independent of, even if not exclusive of, the well-being of the custodial parent ignores the reality.of life in the home of a single, divorced, custodial parent.

However, the custodial parent’s well-being is not the only factor influencing the child’s best interest in visitation cases. In suggesting that the standard we set fails to recognize a child’s interest in maintaining his or her relationship with the noncustodial parent, the concurrence misreads our opinion. We emphasize throughout our opinion that the child has a strong interest in maintaining and developing a relationship with a noncustodial parent. We emphasize that the purpose of the predecessor and present statutes was to preserve the rights of the noncustodial parent and the child to maintain and develop their relationship. And as we state later in this opinion, an important factor to be considered in an individual case is whether a realistic and reasonable visitation schedule can be reached that will provide an adequate basis for preserving and fostering a child’s relationship with the noncustodial parent. There can be no question that in most cases the more contact children of divorced parents have with the noncustodial parent, the better their relationship with that parent will be. See J. Wallerstein & J. Kelly, Surviving the Breakup 194, 307-311 (1980) (suggesting that psychological well-being of a child is influenced by continuing contact with both parents).

In a perfect world, every child would live in a loving, two-parent home. Unfortunately, we do not live in such a world. When parents are divorced or separated, the family unit, even from the perspective of the child, is broken. The parents no longer live in harmony but have competing and often irreconcilable interests. Therefore, it is essential that the courts look to the facts of each case to determine which interests should be given the most weight. It is the court’s task to attempt to accommodate the interests of both parents while serving the best interests of the child. In weighing the factors, however, the court should be mindful that after the divorce a noncustodial parent is free to remove himself or herself from this state to seek a better or different lifestyle despite the continued residency here of the children. If a noncustodial parent chooses to leave this state, or to alter his or her personal life style, the custodial parent cannot prevent his or her departure or change in life style even though it may severely disrupt the child’s relationship with that parent. The 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. D’Onofrio, supra, 144 N.J.Super. at 207. The custodial parent’s freedom to move is qualified, however, by the special obligation of custody, by the state’s interest in protecting the best interests of the child, and by the competing interest of 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.⁴ Removal should not be allowed for a frivolous reason. The advantage, however, need not be a substantial advantage but one based on a sincere and genuine desire of the custodial parent to move and a sensible good faith reason for the move. To establish that the move is not inimical to the best interests of the children, the moving party must show that no detriment to the children will result from the move. For example, if a child were attending a special education program or receiving medical care which was not available in a comparable form in the area where the custodial party wished to move, or if a child had a medical problem which would be aggravated by the move, the threshold requirement would not be met. The decision as to whether the moving party has met the threshold requirement does not include consideration of the visitation issue. 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.

A realistic and reasonable visitation schedule is one that will provide an adequate basis for preserving and fostering a child’s relationship with the noncustodial parent if the removal is allowed. When there has been a pattern of weekend visitation, “a court should be loath to interfere with it by permitting removal of the children for frivolous or unpersuasive or inadequate reasons.” D’Onofrio, supra, 144 N.J.Super, at 206 (citing Grove v. Grove, 26 N.J.Super. 154 (App.Div.1953)). Such a pattern establishes the noncustodial’s parent’s interest in maintaining a good relationship with the child. Nevertheless,

[t]he court should not insist that the advantages of the move be sacrificed and the opportunity for a better and more comfortable life style for the mother and children be forfeited solely to maintain weekly visitation by the father where reasonable alternative visitation is available and where the advantages of the move are substantial. [Id. at 207.]

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. We emphasize that more than a showing of inconvenience by the noncustodial parent is required to overcome a custodial parent’s right to remove the children after he or she has met the threshold showing that the move would be a real advantage to him or her and would not be inimical to the best interests of the children. If, however, the noncustodial parent does present evidence that his or her relationship and visitation with the children would be adversely affected by the move, then the trial court must balance the competing interests of the parties.

The more evidence there is that the noncustodial parent’s visitation with the children will be adversely affected, the more of a showing of compelling reasons to move must be made by the custodial parent. If it is shown that a noncustodial parent’s visitation would be adversely changed or curtailed by the move, the court should require a very substantial or compelling showing of advantage by the custodial parent before allowing the move. We reiterate that the burden of proof is on the custodial parent to meet the threshold requirement. Once the custodial parent has met that threshold, the decision of the court will be based on a balancing of the evidence, presented by both parties, relating to the factors outlined above. Because they are fact-sensitive, no two cases are the same and it is therefore essential that the trial court have the flexibility to deal with unforeseen fact patterns.

IV

In conclusion, we reverse and remand this case to the trial court to decide in accordance with the standards we set forth today.

Since we recognize that the circumstances of the parties have changed in the year that has elapsed since the original hearing on this motion, on remand both parties may supplement the record with any information that may be pertinent to the trial judge’s determination of this case.

Further, at the new hearing both parties will have an opportunity to present expert testimony as to the benefits of weekly visitation as opposed to longer block term visitation. We do not mean to imply that expert testimony is required but merely that the parties, if they so desire, may present such evidence. We express no opinion as to which form of visitation is more beneficial. We suspect that as with most custody and visitation issues the best method in each case depends to a great extent on the specific facts of that case.

Footnotes

1

It is undisputed that Norton visits the children approximately forty weekends per year.

2

9:2-2. Custody of children of divorced or separated parents within jurisdiction of Superior Court; removal from jurisdiction; consent; security

When the Superior Court has jurisdiction over the custody and maintenance of the minor children of parents divorced, separated or living separate, and such children are natives of this State, or have resided five years within its limits, they shall not be removed out of its jurisdiction against their own consent, if of suitable age to signify the same, nor while under that age without the consent of both parents, unless the court, upon cause shown, shall otherwise order. The court, upon application of any person in behalf of such minors, may require such security and issue such writs and processes as shall be deemed proper to effect the purposes of this section.

3

L.1902, c. 92, § 7, p. 259 provides

7. When the court of chancery has jurisdiction over the custody and maintenance of the minor children of parents divorced, separated or living separate, and such children are natives of this state, or have resided five years within its limits, they shall not be removed out of its jurisdiction against their own consent, if of suitable age to signify the same, nor while under that age without the consent of both parents, unless the court, upon cause shown, shall otherwise order; the court, upon application of any person in behalf of such minors, may require such security and issue such writs and processes as shall be deemed proper to effect the purposes of this and the preceding sections.

4

Despite the erroneous statement in the concurrence, at 69, AU.S.A. 9:2-2 is not applicable if both parents consent to the children’s removal.