On appeal from the Superior Court, Chancery Division, Passaic County.
Botter, Pressler and O'Brien. The opinion of the court was delivered by Pressler, J.A.D.
[194 NJSuper Page 222] Plaintiff Diana Helentjaris appeals from that provision of a judgment of divorce which conditions her right to continued custody of the child of the marriage upon her return to New Jersey from Ohio, where she is presently practicing medicine,
and which requires her to establish her residence within a 40-mile radius of defendant's present residence in Passaic County. We stayed that directive pending appeal, and we now reverse.
The parties were married in August 1980. At that time they were both in their early 30's. Plaintiff was a practicing physician with a specialty in emergency medicine, and defendant had earned a Ph.D. degree in physics and was engaged in corporate employment as an engineer. Plaintiff is a native of Ohio and took up residence in New Jersey upon her marriage, obtaining employment as an emergency care physician at Valley Hospital in Ridgewood. Defendant was born in Italy, his family emigrating to the United States when he was 8 years old. He has been a resident of Passaic County since that time.
Plaintiff learned that she was pregnant in August 1981, approximately one year after the marriage. Defendant, however, denied paternity, claiming that since he kept a record of their sexual activity he could state positively that he was not the father. This circumstance, the troubled history of the brief marriage, and the fact that defendant had struck her after she became pregnant resulted in plaintiff's decision to separate from defendant. This she did in August 1981. She continued to work at Valley Hospital but moved to an apartment in Edgewater, New Jersey, in Bergen County. She had no contact whatsoever with defendant after the first several weeks of the separation. Defendant claims that he did not know where she was living. Her explanation was based on her belief that he lacked interest in her and in the unborn child whose paternity he doubted. It is, however, clear that since defendant knew where plaintiff worked, it would not have been difficult for him to communicate with her. At the least, he could have written to her at her place of employment if he were really concerned about her future or the future of the unborn child.
The child, a boy, was born in February 1982, some 6 to 7 months after the separation. Plaintiff gave the child her own
surname of Helentjaris, convinced, as she testified, that raising him would be her exclusive responsibility since the defendant had shown no apparent interest. Following the child's birth, however, the defendant did make claim to paternal rights and obtained an order from the court granting him visitation once each week on 48 hours' notice to plaintiff. He did in fact avail himself of this opportunity to see the child but apparently not on a regular weekly basis. He made no offer of financial support for the child.
In the summer of 1982 when the child was 5 or 6 months old, plaintiff left New Jersey and obtained employment in her medical specialty in the Cincinnati area of which she was a native. While she did not give prior notice to defendant of her precise location, she did provide him with her mother's telephone number and a post office box address to which correspondence could be mailed.
She testified to various reasons for her decision to leave New Jersey. Foremost among them was her desire to arrange a work schedule which would provide her with sufficient income to raise the child while at the same time enabling her to spend maximum time with him. At Valley Hospital she was required to work 12-hour shifts, either from 7 a.m. to 7 p.m. or from 7 p.m. to 7 a.m. The schedule was arduous, and the child was left in the care of an employed caretaker. She attempted to revise her working hours at Valley Hospital but was unsuccessful in doing so. She sought employment at various other New Jersey hospitals and applied to several agencies which place physicians. In July 1982 she was offered employment in the Cincinnati area at an emergency care facility at which she had the opportunity of working only 3 days a week for 11-hour shifts each, leaving her free to spend 4 days a week with the child.
This offer was also attractive to her because it permitted her to pursue her medical specialty, it provided her with virtually the same income of ...