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D''Onofrio v. D''onofrio

Decided: August 12, 1976.

DOMINICK D'ONOFRIO, PLAINTIFF,
v.
PHYLLIS D'ONOFRIO, DEFENDANT



Pressler, J.c.c., Temporarily Assigned.

Pressler

Following a plenary hearing pursuant to N.J.S.A. 9:2-2, the court granted the application of defendant Phyllis D'Onofrio for leave to remove her children, a boy of the age of six and a girl of the age of four, to South Carolina for purposes of establishing permanent residency there. The application was granted over the objection of the father of the children, Dominick D'Onofrio, who obtained a no-fault divorce from Mrs. D'Onofrio in December 1973 by a judgment granting her custody of the children subject to the father's unspecified and undefined right of "reasonable visitation." The order permitting the removal included provisions for specified future visitation in both New Jersey and South Carolina as well as provisions by way of security to ensure the return of the children for the New Jersey visitation. This opinion is filed pursuant to R. 2:5-1 (b) to further elucidate the court's reason for granting the application in view of the father's appeal from the removal order.

The court is keenly aware that of all adjudicatory proceedings, none requires greater judicial thoughtfulness nor imposes graver judicial responsibility than the delicate and sensitive litigation which involves the status of young children or which may affect to any substantial degree existing parental relationships. The resolution of the issue here presented, essentially one of visitation, concededly does not implicate the same degree of wrenching emotional content and permanency of consequence inevitably involved in contested adoption and custody actions. It is nevertheless of critical significance to the lives of both of these parents and their children. The issue is also one of sufficient importance to have invoked a clear and long-standing statement of legislative policy, namely, that children of divorced parents not be removed from this jurisdiction without the consent of the non-custodial parent "unless the court, upon cause shown, shall otherwise order." N.J.S.A. 9:2-2. The questions to be here determined then, in view of this anti-removal policy and its evident purpose, are first, the factors

and considerations which constitute an adequate showing of cause for relieving the custodial parent of the obligation to remain with the children in this jurisdiction, and second, whether such a showing was here made by the mother.

It is instructive in dealing with these questions to consider N.J.S.A. 9:2-2 and its cognate provision, N.J.S.A. 9:2-4, in their historical context. At common law the father, unless unfit or otherwise disqualified, had the superior right to the custody of his minor children, a right only modestly qualified in 1860 by legislative fiat -- see L. 1860, c. 437, which required the awarding of custody of children under the age of seven to the mother, if fit, where the parents were separated but not divorced. What is most suggestive, however, about the 19th Century expressions of purportedly strict common-law and statutory dictates was the articulated and applied concept that the actual criterion of parental fitness was its consonance with the child's wellbeing as judicially determined. See, e.g., State, Baird, pros. v. Baird and Torrey , 21 N.J. Eq. 384, 388-389 (E. & A. 1869). The recognition of the paramountcy of the child's welfare was, of course, the touchstone of the reform legislation of 1902 from which, among other matters, N.J.S.A. 9:2-2 and 9:2-4 derive.

Thus, N.J.S.A. 9:2-4 declares that the custodial rights and obligations of both parents are equal and that it is the "happiness and welfare" of the children which shall be determinative of the custodial question. N.J.S.A. 9:2-4 also enjoins, without qualification or exception, the removal of the children from this jurisdiction "where the mother or father resides in this State and is the suitable person who should have the custody of such child for its best welfare." (Emphasis added). The main thrust of the anti-removal provision of N.J.S.A. 9:2-4 was clearly to prevent the defeat of an award of custody either already made or pending. The thrust of the anti-removal provision of N.J.S.A. 9:2-2, however, is addressed not primarily to the basic custodial question but rather to the preservation

of the mutual right of the children and the noncustodial parent to develop and maintain their parental relationship after custody has already been awarded to the other parent, a relationship based upon that institution which has come to be known as "visitation." Unlike its N.J.S.A. 9:2-4 counterpart, the anti-removal provision of N.J.S.A. 9:2-2 is subject to the exercise of judicial discretion and this, patently, because of the legislative recognition of the obvious fact that visitation by the non-custodial parent is not inherently incompatible with the residency of the children in another state. Thus, when our courts speak of the "cause shown" criterion of N.J.S.A. 9:2-2 in terms of the best interests and welfare of the child, they speak, as a matter of content, not to the whole range of considerations which must be taken into account in deciding which of the parents shall have custody. They speak rather to one aspect of the child's welfare, namely his interest in continuing, by appropriate visitation, as reasonable, healthy and affectionate a relationship as possible with the parent with whom he does not reside. See, e.g., Smith v. Smith , 85 N.J. Super. 462, 468-469 (J.D.R. Ct. 1964); Salmon v. Salmon , 88 N.J. Super. 291, 309 (App. Div. 1965); Parivash v. Yousef , 94 N.J. Super. 403 (App. Div. 1967); Daly v. Daly , 39 N.J. Super. 117, 123-124 (J.D.R. Ct. 1956), aff'd 21 N.J. 599 (1956); Casteel v. Casteel , 45 N.J. Super. 338, 353 (App. Div. 1957); In re Shaheen , 127 N.J. Eq. 75 (E. & A. 1939).

Even under the best of circumstances and where the custodial parent is supportive of a continuing relationship between the child and the noncustodial parent, the nature of a parental relationship sustainable by way of visitation is necessarily and inevitably of a different character than that which is possible where the parents and children reside together as a single-family unit. The fact remains that ordinarily the day-to-day routine of the children, especially young ones, and the quality of their environment and their general style of life are that which are provided by the custodial parent

and which are, indeed, the custodial parent's obligation to provide. The children, after the parents' divorce or separation, belong to a different family unit then 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 interests of the children. It is in the context of what is best for that family unit that the precise nature and terms of visitation and changes in visitation by the noncustodial parent must be considered.

Where the residence of the new family unit and that of the noncustodial parent are geographically close, some variation of visitation on a weekly basis is traditionally viewed as being most consistent with maintaining the parental relationship, and where, as here, that has been the visitation pattern, a court should be loathe to interfere with it by permitting removal of the children for frivolous or unpersuasive or inadequate reasons. See Grove v. Grove , 26 N.J. Super. 154 (App. Div. 1953). Where, however, the custodial parent can demonstrate that a real advantage to herself and the children will result from their removing their residence to a place so geographically distant as to render weekly visitation impossible, then the court must weigh a number of determinative factors in order to accommodate the compelling interests of all of the family members. It should consider the prospective advantages of the move in terms of its likely capacity for improving the general quality of life for both the custodial parent and the children. It must evaluate the integrity of the motives of the custodial parent in seeking the move in order to determine ...


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