Thursday, November 01, 2012

Contentious Divorce, Custody and Relocation in New Jersey

In a recent 2012 New Jersey relocation case, Mother asked the court to allow her to relocate from New Jersey to Kansas with her and Father’s two young children. Carmon v. Carmon, 2012 WL 1205809.

Mother and Father had been involved in a contentious marriage, divorce and custody battle beginning with their marriage in 2003. During 2005, the parties entered into their first custody agreement whereby they would have joint legal custody, Mother would be the parent of primary residence (“PPR”) and Father would be the parent of alternative residence (“PAR”). Father was also ordered to pay child support and pendente lite spousal support. The custody agreement also contained Father’s permission to allow Mother to relocate to Kansas with their minor child. In the spring of 2006, Mother gave birth to the couple’s second child. Shortly after, the couple reconciled and Mother moved back to New Jersey. Unfortunately, domestic bliss crumbled and in July 2008, Father filed a complaint for divorce and, one month later, each party filed domestic violence complaints against the other. In September 2008, a Final Restraining Order (“FRO”) was granted to Mother but continued the established joint legal custody with Mother as PPR and Father as PAR. When the FRO was dismissed in January 2009, Father was granted additional parenting time. The parties’ Final Judgment of Divorce established a parenting plan, holiday schedule and, once again, specified that Mother was the PPR and Father was the PAR.

Following the entry of divorce, the parties relationship remained strained and, at times, required police intervention when transferring the children from one parent to the other. In November 2009, Mother filed a request seeking relocation to Kansas and, following a trial, Mother’s request was granted.

Father appealed seeking to overturn the relocation, asking that Mother be required to live in New Jersey and have himself designated as the PPR. 

In New Jersey, when one parent files a request to relocate, the initial question is: what is the existing custody status between the parties? If the parties have a true shared custody arrangement where they each perform an equal role in care-taking, then the court uses the “change-of-custody” test. Under the “change-of-custody” test, the party seeking to relocate must show that the best interests of the child would be better served if the child were to relocate with that parent. However, if one parent serves as the primary care-taker, then the primary care-taker’s request to relocate is evaluated using the two-part test in Baures. Baures v. Lewis, 167 N.J. 91 (2001). Under a Baures analysis, the relocation request will be granted when the “preponderance of the credible evidence demonstrates the custodial parent has a good faith reason for the move and the move will not be inimical to the children’s interests.” Baures, 167 N.J. at 118.

In the trial court’s opinion, the judge noted the extensive history of custody agreements between the parties establishing Mother as the PPR and Father as the PAR. Father was well aware of Mother’s ties to Kansas, as she had returned to the area prior to the birth of the couple’s second child. At trial, Mother testified to her changed and worsened circumstances which provoked her need to relocate. Mother gave numerous good faith reasons for the move, including moving closer to her family, moving back into a home she already owned, and pursuing two pending job offers. The trial judge made note of the fact that Father contributed to Mother’s worsened financial situation by failing to pay her money from the divorce settlement, taking the children out of daycare and failing to uphold other financial responsibilities to their children.

Father argued that the trial court should have used a shared custody analysis, instead of the Baures analysis. The appellate division declined to use a shared custody analysis because the trial judge made it clear that in numerous custody agreements the parties designated Mother as the PPR and Father as the PAR. Thus, there was never true “shared custody.” Furthermore, Father gave the court no evidence that the move would be adverse to the children’s best interests. To establish that a relocation is not in a child’s best interest, a parent must demonstrate more than mere separation or a change in parenting time.  

If you have questions about a possible relocation or current custody arrangement, contact an attorney.

Written by Allyson Lutley, law clerk at the Law Offices of Linda A. Kerns, LLC.  Edited by Elizabeth A. Bokermann, Esquire, associate attorney.

1 comment:

lushi martin said...

If your partner does not accept shift out then there is little that can be done unless it is having an impact on your psychological or actual wellness.
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