Of course, delighted with this proposed "course correction."
"Initially, the lighter burden applied to removal requests by an exclusive or primary caretaker was established in an attempt to recognize the caretaker's liberty interests to seek happiness and fulfillment. See Baures v. Lewis, 167 N.J. at 115. See also Voit v. Voit, 317 N.J. Super. 103, 115-116 (Ch. Div. 1998) (noting the tension between 'the moving parent's freedom of mobility, the competing interests of the objecting parent, and the best interests of the child'). The standard relies on the general belief that 'what is good for the [primary caretaker] is good for the child.' See Baures v. Lewis, 167 N.J. at 106.
Unfortunately, application of the more accommodating standard does not necessarily result in an arrangement that furthers the child's best interests. Indeed, at least one of the studies relied upon in Baures for the premise that a child's wellbeing is directly related to the wellbeing of the residential parent has been criticized as having limited support. See Braver, Ellman, & Fabricius, 'Relocation of Children After Divorce and Children's Best Interests: New Evidence and Legal Considerations,' Journal of Fam. Psych., Vol. 17, No. 2 (2003), at 206-219 (Braver study). In the Braver study, which was completed after Baures was decided, it was determined that 'there is no empirical basis by which to justify a legal presumption that a move by a custodial parent to a destination she plausibly believes will improve her life will necessarily confer benefits on the children she takes with her.' Id. at 215.
In addition, the divergent standards for removal have left the door open for the abuse and manipulation of proceedings to establish or modify the custody arrangement. See, e.g., Shea v. Shea, 384 N.J. Super. 266, 273-274 (Ch. Div. 2005), discussed further at 25:5. Clearly then, this is an area of the law that will continue to evolve as more is understood about the connection between a parent's wellbeing and that of a child, as well as the effect of a relocation on the child and the child's relationship with either parent." Fall & Romanowski, New Jersey Family Law, Relationships Involving Children (Gann) at 25:1-1.
Just a few comments concerning the proposed legislation...
2. "Relocate"... specifically excludes intrastate moves. Consistent with current case law:
"No intrastate removals: In-state removals are not prohibited by the anti-removal statute, regardless of distance. However, other factors may limit one parent's ability to move with the child within the state and maintain the custodial arrangement. See Schulze v. Morris, 361 N.J. Super. 419, 426 (App. Div. 2003) ('the relocation of a child ... from one location in New Jersey to another may have a significant impact upon the relationship between the child and the non-residential custodial parent that may constitute a substantial change of circumstances warranting modification of the custodial and parenting-time arrangement')." Fall & Romanowski, New Jersey Family Law, Relationships Involving Children (Gann) at 25:1-2.
4. Motion objecting to or requesting relocation.
a. Unless there is consent to the relocation by the non-relocating parent, a parent seeking permission to relocate with a child shall file a motion with the court seeking permission, prior to the relocation, and remain in New Jersey with the child unless and until that parent receives permission to relocate.
This provision would apparently abrogate the existing freedom of the trial judiciary to grant temporary removal pending the plenary hearing (often in time to start school in the target location), as in O'Connor v. O'Connor, 349 N.J. Super. 381 (App. Div. 2002). There, [the court], when [the] matter was placed emergently before it, knowing the Baures decision . . . did permit the plaintiff to bring the child to start schooling in Indiana and to start there, but yet all parties agreed that the Court would continue to exercise jurisdiction, and that if the . . . move was not going to be permitted, that the child would come back to New Jersey, the home state." Id. at 381. Counsel for the parties did affix their consent to an order permitting the temporary removal, however, in concept, the motion could have been granted as disputed.
8. Priority for case management. A case management conference on a motion seeking permission to relocate or objecting to relocation shall be set within 30 days upon the conclusion of the hearing on the motion for relocation or objection to relocation.
Quare: Are we referring to 30 days after the return date for oral argument for the CMC?
Good luck to everyone and Happy Thanksgiving!
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Curtis Romanowski Esq.
Senior Attorney - Proprietor
Metuchen NJ
(732)603-8585
Original Message:
Sent: 11-25-2015 10:22
From: Amanda Trigg
Subject: S3252 (Barnes) - removal of children
On behalf of the Family Law Section, I am pleased to share the attached legislation with you, which the NJSBA supports.
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Amanda Trigg Esq.
Chair, Family Law Section of NJSBA
Hackensack NJ
(201)488-1161
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