Shea v. Shea

894 A.2d 711, 384 N.J. Super. 266, 2005 N.J. Super. LEXIS 397
CourtNew Jersey Superior Court Appellate Division
DecidedApril 5, 2005
StatusPublished
Cited by4 cases

This text of 894 A.2d 711 (Shea v. Shea) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shea v. Shea, 894 A.2d 711, 384 N.J. Super. 266, 2005 N.J. Super. LEXIS 397 (N.J. Ct. App. 2005).

Opinion

MILLARD, J.S.C.

This matter comes before the court on application of defendant seeking an order of removal, authorizing her to relocate with the minor child to the State of North Carolina. At issue are both prongs of the analysis under Baures v. Lewis, 167 N.J. 91, 770 A.2d 214 (2001); i.e., whether defendant has a good faith reason for the move and whether the move would be inimical to the child. Plaintiff raises an additional issue which appears to be of first impression. He asserts that defendant manipulated the intent of Baures by first settling the divorce, and immediately thereafter filing for removal, effectively depriving him of the opportunity to contest custody. Plaintiff asserts that he would never have acquiesced to the custodial settlement, joint custody with defendant as parent of primary residence, had he known that defendant was shortly thereafter going to seek an order for out of-state removal. [269]*269Defendant’s request for removal was filed three months after the parties entered into a negotiated divorce settlement, which called for joint legal custody, and while establishing defendant as the parent of primary residence, provided substantial and regular parenting time to plaintiff.

Defendant filed her removal application on October 20, 2004, which was initially heard by the court on motion on December 10, 2004. An order was entered directing the parties to file supplemental briefs addressing the statutory custody criteria and the relevant issues in a Baures analysis, which motion was ultimately heard on January 13, 2005. The court issued a decision on January 25, 2005. The matter was returned to the court on Motion for Reconsideration, heard April 1, 2005.

Procedurally, post-judgment removal actions should be initially addressed by motion. A plenary hearing is not necessary in every case where removal of children is at issue. Pfeiffer v. Ilson, 318 N.J.Super. 13, 722 A.2d 966 (App.Div.1999). Only where a prima facie case for removal has been made, and there exist genuine issues of material fact bearing upon a critical question, is a plenary hearing necessary. Id. at 14, 722 A.2d 966.

Baures, supra the leading case governing removal hearings, integrates the Court’s earlier decisions in Holder v. Polanski, 111 N.J. 344, 544 A.2d 852 (1988), and Cooper v. Cooper, 99 N.J. 42, 491 A.2d 606 (1984), and provides a blueprint for courts to conduct these difficult proceedings. The first step in the Baures removal analysis is to determine the nature of the existing custodial relationship. Where the parties are exercising true, shared joint custody, the court is required to undertake the more stringent “best interests” analysis applicable to a change of custody application. Baures, supra, 167 N.J. at 115, 770 A.2d 214. Conversely, where the party seeking removal already exercises primary custody, his or her burden is to establish, (1) a good faith reason for the move and (2) that the move is not inimical to the child’s interests. The burden then shifts to the parent of alternate residence to produce evidence in opposition to the move. Id. at [270]*270118, 770 A.2d 214. The later test differs from a traditional custody determination, in that a parent’s interests are more closely considered. In O’Connor v. O’Connor, 349 N.J.Super. 381, 793 A.2d 810 (App.Div.2002), the court clarified the procedures for a trial court in determining which of the two standards should be utilized, if there is a dispute as to whether there is a true shared parenting arrangement.

In the present case, the parties settled their litigation on June 8, 2004, signed a property settlement agreement and proceeded uncontested on their divorce. The agreement incorporated a pendente lite parenting agreement entered into in January, which provided for joint legal custody, with defendant designated as parent of primary residence. Plaintiff received parenting time on alternating weekends, Friday through Sunday, Wednesday overnights, two weeks in the winter, one week in the summer, and half of the holidays. The Judgment of Divorce was filed with the court on July 12, 2004. While plaintiff seeks a determination that the best interests of the child, change-of-custody standard be utilized, there is no dispute that defendant is effectively exercising primary custody. Accordingly, in analyzing the case according to O’Con-nor, supra, the Baures removal criteria would appear to apply.

Plaintiff asserts that he settled the issue of custody and waived his right to seek to be the primary custodial parent based upon specific terms of the settlement which were reached, most importantly, substantial and regular parenting time. He asserts that the custody negotiations by defendant were a subterfuge in that she planned to seek removal shortly after the divorce was entered. By settling custody, with defendant being designated primary custodial parent, plaintiff asserts he would be denied the right to later contest custody during a removal hearing, effectively manipulating the intent of Baures. Plaintiff’s assertion of how a litigant could manipulate the procedures for removal is not without merit. Current case law does not address such a circumstance.

Defendant denies any manipulative purpose. Here, defendant’s primary reason for relocation is that her mother recently moved to [271]*271North Carolina. Secondarily, she indicates that it is generally more economical to live there, with a better quality of life. Defendant’s mother moved to North Carolina in March 2004, three months prior to the divorce being settled. Defendant does assert in oral argument that the death of a friend in August was a catalyst to her decision to relocate. However, there are no material facts, circumstances or events cited in defendant’s certification that occurred subsequent to the divorce that form the good faith reason for the removal. The principal facts and circumstances applicable to the removal action appear to have been cognizable at the time of the entry of the Final Judgment of Divorce. Plaintiff did have a right to contest custody in the divorce litigation, which he asserts he waived in reasonable reliance on the settlement of the parties. Irrespective of whether defendant’s timing in filing for removal shortly after the divorce was calculated or coincidental, it has the same impact on plaintiff. He is denied the right to contest custody which he would have had of right at the divorce hearing, and would be required to litigate the removal action under the Baures criteria.

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Cite This Page — Counsel Stack

Bluebook (online)
894 A.2d 711, 384 N.J. Super. 266, 2005 N.J. Super. LEXIS 397, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shea-v-shea-njsuperctappdiv-2005.