Relocation: New Jersey Style
By: Robert J. Durst
The D’Onofrio case decided in 1976 by a New Jersey trial court and affirmed by our intermediate Appellate Court was the first case in New Jersey, and an early case across the country, addressing the standards for the removal of children from the jurisdiction.
Inasmuch as D’Onofrio is often cited by sister states, the purpose of this paper is to address the evolution of the law of relocation/removal of children from the jurisdiction in New Jersey subsequent to the D’Onofrio decision in 1976.
I. AT FIRST THE FOCUS UPON THE BENEFIT TO THE MOVING PARENT. The D’Onofrio Court reviewed the societal context and background of the law as it pertains to custody and visitation beginning with the common law presumption that the father unless unfit or otherwise disqualified had the superior right of custody of minor children, to the "tender years" doctrine, to the genesis of the "welfare of the child" considerations in the early 1900's and ultimately to the "best interest of the children" standard.
In attempting to define the societal context of the 1970's, the Court observed that:
"The children, after the parent’s divorce or separation belong to a different family unit than they did when the parents lived together. The new family unit consists only of the children and the custodial parent, and what is advantageous to that unit as a whole, to each of its members individually and to the way they relate to each other and function together is obviously in the best interest of the children."
Thus, the societal context within which D’Onofrio was decided in 1976 was that the "new family unit" was the custodial parent and the children. Clearly, custody and visitation had not yet evolved to the shared and joint custody concepts which now pervade the law of custody and visitation in most jurisdictions.
Thus, it was in that context that the D’Onofrio Court focused primarily on the benefits which the move would have for the custodial parent. Finding that the decision must be made: "... in the context of what is best for that [i.e. the custodial parent and the children] family unit."
The Court in D’Onofrio gave some, but little, significance to the impact of the move upon the remaining parent and his/her post relocation relationship with the children.
In order to assess the present viability of the D’Onofrio major premise that the advantage to the custodial parent is the determining factor on application for relocation or removal relevant considerations in 1999, we must consider what has happened to the law and to society in the twenty plus years since the decision.
II. THE EARLY REVIEWS. Although the Trial Court’s decision in D’Onofrio was appealed and affirmed by New Jersey’s intermediate Appellate Court. The appellate Division’s opinion did not add much to or modify the Trial Court’s decision and the case did not go to the New Jersey Supreme Court.
Two subsequent Appellate Division decisions essentially concurred with D’Onofrio holding that the criteria to determine relocation was the advantage of the move to the custodial parent.
Although some states were beginning to focus more upon the relationship of the child and the remaining the parent, the majority of decisions in sister states in the 1970's and early 80's similarly focused on the advantage to the custodial parent.
In 1984, the New Jersey Supreme Court in the matter of Cooper had its first opportunity to review the issues. "If a non custodial parent chooses to leave this state . . . the custodial parent cannot prevent his or her departure . . . even though it may severely disrupt the child’s relationship with the parent. The custodial parent who bears the burden and responsibility for the child is entitled, to the greatest extent possible, to the same freedom to seek a better life for herself or himself." (Emphasis Added)
Thus, the Supreme Court in Cooper still seemed to focus on the advantage of the move to the custodial parent. However, the Court went on to qualify the custodial parent’s freedom to move by recognizing "the special obligation of custody . . . and the competing interest of the non custodial parent." The Court recognized the need for an alternative visitation schedule which would not be so impossible or burdensome as to unreasonably and adversely effect the remaining parent’s right to preserve his or her relationship with the child.
Thus, eight years after the D’Onofrio decision, in 1984 the law of relocation and removal from New Jersey was that:
The D’Onofrio case decided in 1976 by a New Jersey trial court and affirmed by our intermediate Appellate Court was the first case in New Jersey, and an early case across the country, addressing the standards for the removal of children from the jurisdiction.
Inasmuch as D’Onofrio is often cited by sister states, the purpose of this paper is to address the evolution of the law of relocation/removal of children from the jurisdiction in New Jersey subsequent to the D’Onofrio decision in 1976.
I. AT FIRST THE FOCUS UPON THE BENEFIT TO THE MOVING PARENT. The D’Onofrio Court reviewed the societal context and background of the law as it pertains to custody and visitation beginning with the common law presumption that the father unless unfit or otherwise disqualified had the superior right of custody of minor children, to the "tender years" doctrine, to the genesis of the "welfare of the child" considerations in the early 1900's and ultimately to the "best interest of the children" standard.
In attempting to define the societal context of the 1970's, the Court observed that:
"The children, after the parent’s divorce or separation belong to a different family unit than they did when the parents lived together. The new family unit consists only of the children and the custodial parent, and what is advantageous to that unit as a whole, to each of its members individually and to the way they relate to each other and function together is obviously in the best interest of the children."
Thus, the societal context within which D’Onofrio was decided in 1976 was that the "new family unit" was the custodial parent and the children. Clearly, custody and visitation had not yet evolved to the shared and joint custody concepts which now pervade the law of custody and visitation in most jurisdictions.
Thus, it was in that context that the D’Onofrio Court focused primarily on the benefits which the move would have for the custodial parent. Finding that the decision must be made: "... in the context of what is best for that [i.e. the custodial parent and the children] family unit."
The Court in D’Onofrio gave some, but little, significance to the impact of the move upon the remaining parent and his/her post relocation relationship with the children.
In order to assess the present viability of the D’Onofrio major premise that the advantage to the custodial parent is the determining factor on application for relocation or removal relevant considerations in 1999, we must consider what has happened to the law and to society in the twenty plus years since the decision.
II. THE EARLY REVIEWS. Although the Trial Court’s decision in D’Onofrio was appealed and affirmed by New Jersey’s intermediate Appellate Court. The appellate Division’s opinion did not add much to or modify the Trial Court’s decision and the case did not go to the New Jersey Supreme Court.
Two subsequent Appellate Division decisions essentially concurred with D’Onofrio holding that the criteria to determine relocation was the advantage of the move to the custodial parent.
Although some states were beginning to focus more upon the relationship of the child and the remaining the parent, the majority of decisions in sister states in the 1970's and early 80's similarly focused on the advantage to the custodial parent.
In 1984, the New Jersey Supreme Court in the matter of Cooper had its first opportunity to review the issues. "If a non custodial parent chooses to leave this state . . . the custodial parent cannot prevent his or her departure . . . even though it may severely disrupt the child’s relationship with the parent. The custodial parent who bears the burden and responsibility for the child is entitled, to the greatest extent possible, to the same freedom to seek a better life for herself or himself." (Emphasis Added)
Thus, the Supreme Court in Cooper still seemed to focus on the advantage of the move to the custodial parent. However, the Court went on to qualify the custodial parent’s freedom to move by recognizing "the special obligation of custody . . . and the competing interest of the non custodial parent." The Court recognized the need for an alternative visitation schedule which would not be so impossible or burdensome as to unreasonably and adversely effect the remaining parent’s right to preserve his or her relationship with the child.
Thus, eight years after the D’Onofrio decision, in 1984 the law of relocation and removal from New Jersey was that:
a. The advantage to the custodial parent of the move was the determining factor; but
b. The remaining parent could defeat the move by showing that the move would reasonably and unnecessarily effect his/her continuing relationship with the children.
b. The remaining parent could defeat the move by showing that the move would reasonably and unnecessarily effect his/her continuing relationship with the children.
III. A SHIFT TOWARD PARITY OF THE REMAINING PARENT. Four years after its decision in Cooper, the New Jersey Supreme Court again revisited the issue of removal and relocation. In Holder v. Polanski, the Court again reviewed the historical evolution of custody and visitation, but now observed that in appropriate cases, Courts were beginning to make joint custody awards.
For the first time, in recognition of the shifting societal norms with regard to custody or post divorce parenting of children, the court began to focus more upon the impact of the move upon the remaining parent’s relationship with the children.
The Court held that: "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 amongst other things, a real advantage to that parent from the move.We now modify that requirement and hold that a custodial parent may move with the children of the marriage to another state so long as the move does not interfere with the best interest of the children or the visitation rights of the non custodial parent".
In conclusion, the New Jersey Supreme Court in Holder held that: "We believe, however, that the focus of the "cause" requirements should not be on the benefits that will accrue to the custodial parent but on the best interests of the children and on the preservation of their relationship with the non custodial parent".
Thus, the balance begins to shift from the advantages to the moving parent to the impact upon the remaining parent.
IV. THE SHIFT IS COMPLETED. Ten years after its decision in Holder, the New Jersey Supreme Court revisited the issue of relocation and removal in Levine v. Bacon. Just as Holder represented a significant modification of the Cooper standard, the Court in Levine appeared to further reduce the burden upon the parent seeking to relocate.
In Levine, the Court extensively reviewed its holdings in Cooper and Holder, and observed that in Holder v. Polanski , they had modified the requirements set forth in Cooper to then require simply a good faith reason for the move and reaffirmed that holding stating that the parent seeking the move must only show any "good faith reason" for the move.
However, while the burden upon the moving parent was significantly reduced by the Supreme Court in Levine having to show a positive impact or advantage from the move to simply showing any good faith reason for the move, the impact upon the remaining parent and his or her relationship/visitation with the children was given increased significance. In fact, the impact upon the remaining parent was the determining factor in Levine.
Earlier Appellate Division decisions (Horswell, Supra) held that the mere fact that visitation would be made more difficult was not sufficient ground to deny the move and (Winer, Supra) that some level of reduction in the amount of visitation is to be expected and must be deemed acceptable.
However, by 1996, the Supreme Court in Levine, Supra, moved away from those Appellate Court decisions and denied the move because of its impact upon the remaining parent’s relationship with the children.
The intermediate Appellate Division (which was affirmed with approval and without lengthy opinion by the Supreme Court) concluded that: "Whatever advantage Plaintiff may obtain for himself . . . by moving to Florida does not outweigh the harm that will be caused by breaking up a six year old child’s security of having both parents who have been intimately involved in her life nearby. Removing [the child] to Florida would certainly be disruptive to the parent/child relationship and would substantially undermine [the remaining parent’s] ability to have a meaningful relationship with her daughter and play an essential parenting role . . . "
Thus, as society had shifted from a custody and every other weekend visitation model of the 70's to shared parenting of the 90's, so has the law of removal shifted from centering on the benefits to the custodial parent to the impact upon the remaining parent.
CONCLUSION
We seem to have come full circle. On the one hand, the burden is upon the removing parent to show an advantage to the move has now been mitigated so that the moving parent only need now show a good faith reason for the move. That shift seems to recognize our mobile society and the custodial parent’s right to go forward with their lives.
On the other hand, the D’Onofrio concept that the post divorce family unit consists only of the children and the custodial parent has now been significantly modified to recognize the remaining parent’s "essential parenting role". A shift that recognizes the evolving post divorce parity of parents, shared parenting and joint custody.
As the concepts of joint custody, shared custody and shared parenting time have evolved in society they have appropriately and properly found their way into the law of removal and relocation.
The D’Onofrio Court’s observations that the custodial parent and the children was the only post divorce family unit in 1974 was probably an accurate observation for the times. For the most part, at that time mothers retained custody of the children and the father’s had alternating weekend visitation and, in reality, the custodial parent and the children were the post divorce family unit.
Not so in 1999. Now, typically, both parents play a much more active role in the post divorce lives of their children. Thus, the law of removal and relocation in New Jersey shifted to place more emphasis upon the impact of the move on the remaining parent.
What is the next step beyond Levine? A logical projection of the evolving concepts would seem to imply greater restrictions upon the ability to relocate by reason of increasing insignificance being given to the impact of the move upon the children’s relationship with the remaining parent.
For the first time, in recognition of the shifting societal norms with regard to custody or post divorce parenting of children, the court began to focus more upon the impact of the move upon the remaining parent’s relationship with the children.
The Court held that: "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 amongst other things, a real advantage to that parent from the move.We now modify that requirement and hold that a custodial parent may move with the children of the marriage to another state so long as the move does not interfere with the best interest of the children or the visitation rights of the non custodial parent".
In conclusion, the New Jersey Supreme Court in Holder held that: "We believe, however, that the focus of the "cause" requirements should not be on the benefits that will accrue to the custodial parent but on the best interests of the children and on the preservation of their relationship with the non custodial parent".
Thus, the balance begins to shift from the advantages to the moving parent to the impact upon the remaining parent.
IV. THE SHIFT IS COMPLETED. Ten years after its decision in Holder, the New Jersey Supreme Court revisited the issue of relocation and removal in Levine v. Bacon. Just as Holder represented a significant modification of the Cooper standard, the Court in Levine appeared to further reduce the burden upon the parent seeking to relocate.
In Levine, the Court extensively reviewed its holdings in Cooper and Holder, and observed that in Holder v. Polanski , they had modified the requirements set forth in Cooper to then require simply a good faith reason for the move and reaffirmed that holding stating that the parent seeking the move must only show any "good faith reason" for the move.
However, while the burden upon the moving parent was significantly reduced by the Supreme Court in Levine having to show a positive impact or advantage from the move to simply showing any good faith reason for the move, the impact upon the remaining parent and his or her relationship/visitation with the children was given increased significance. In fact, the impact upon the remaining parent was the determining factor in Levine.
Earlier Appellate Division decisions (Horswell, Supra) held that the mere fact that visitation would be made more difficult was not sufficient ground to deny the move and (Winer, Supra) that some level of reduction in the amount of visitation is to be expected and must be deemed acceptable.
However, by 1996, the Supreme Court in Levine, Supra, moved away from those Appellate Court decisions and denied the move because of its impact upon the remaining parent’s relationship with the children.
The intermediate Appellate Division (which was affirmed with approval and without lengthy opinion by the Supreme Court) concluded that: "Whatever advantage Plaintiff may obtain for himself . . . by moving to Florida does not outweigh the harm that will be caused by breaking up a six year old child’s security of having both parents who have been intimately involved in her life nearby. Removing [the child] to Florida would certainly be disruptive to the parent/child relationship and would substantially undermine [the remaining parent’s] ability to have a meaningful relationship with her daughter and play an essential parenting role . . . "
Thus, as society had shifted from a custody and every other weekend visitation model of the 70's to shared parenting of the 90's, so has the law of removal shifted from centering on the benefits to the custodial parent to the impact upon the remaining parent.
CONCLUSION
We seem to have come full circle. On the one hand, the burden is upon the removing parent to show an advantage to the move has now been mitigated so that the moving parent only need now show a good faith reason for the move. That shift seems to recognize our mobile society and the custodial parent’s right to go forward with their lives.
On the other hand, the D’Onofrio concept that the post divorce family unit consists only of the children and the custodial parent has now been significantly modified to recognize the remaining parent’s "essential parenting role". A shift that recognizes the evolving post divorce parity of parents, shared parenting and joint custody.
As the concepts of joint custody, shared custody and shared parenting time have evolved in society they have appropriately and properly found their way into the law of removal and relocation.
The D’Onofrio Court’s observations that the custodial parent and the children was the only post divorce family unit in 1974 was probably an accurate observation for the times. For the most part, at that time mothers retained custody of the children and the father’s had alternating weekend visitation and, in reality, the custodial parent and the children were the post divorce family unit.
Not so in 1999. Now, typically, both parents play a much more active role in the post divorce lives of their children. Thus, the law of removal and relocation in New Jersey shifted to place more emphasis upon the impact of the move on the remaining parent.
What is the next step beyond Levine? A logical projection of the evolving concepts would seem to imply greater restrictions upon the ability to relocate by reason of increasing insignificance being given to the impact of the move upon the children’s relationship with the remaining parent.
