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Cooper v. Cooper

Decided: November 14, 1984.

KAREN W. COOPER, PLAINTIFF-APPELLANT,
v.
NORTON J. COOPER, DEFENDANT-RESPONDENT



On certification to the Superior Court, Appellate Division.

For reversal and remandment -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern and Garibaldi. For affirmance -- None. The opinion of the Court was delivered by Garibaldi, J. Schreiber, J., concurring. Schreiber, J., concurring in the result.

Garibaldi

[99 NJ Page 45] This appeal concerns N.J.S.A. 9:2-2, which provides in pertinent part that the custodial parent shall not remove minor children from this jurisdiction "without the consent of both parents, unless the court, upon cause shown shall otherwise order." (emphasis added). Specifically, the issue is what constitutes an adequate showing of "cause" for a court to allow

the custodial parent to remove the children from New Jersey over the noncustodial parent's objection.

I

The parties, Karen W. Cooper (Karen) and Norton J. Cooper (Norton), were married in 1970, separated in 1977, and divorced in 1980. Two children were born of their marriage, Toby Cooper, born December 8, 1974, and Robert James Cooper, born August 3, 1976. Karen was granted custody of the children. An agreement between the parties, incorporated in the divorce judgment, provides, "HUSBAND shall have reasonable visitation with said children" and "[i]n the event that she wishes to change her residence, she agrees to obtain the consent of HUSBAND or a court of competent jurisdiction to said move and to make arrangements to assure that HUSBAND has appropriate visitation of the children."

In accordance with the terms of the Settlement Agreement, Karen in 1982 filed a Notice of Motion for modification of the Final Judgment of Divorce, seeking the court's permission to remove the children from New Jersey and take them to the San Diego area of California. Norton cross-moved for an order enjoining Karen from removing the children from New Jersey. A hearing was held on Karen's motion as well as Norton's cross-motion.

The first reason Karen gave for her desire to move concerns her belief that since the children were prone to colds, ear infections, and other respiratory problems, southern California would be a healthier climate for the children than New Jersey. Although she presented no evidence that the boys suffer from any significant respiratory problems, she was convinced that California would provide a healthier environment. Karen also presented evidence that the quality of life for the children would be at least equal to and perhaps better than that offered in Princeton since their housing, schooling, and activities would be comparable, and possibly enhanced by an improved climate.

Both children indicated to the trial court that they have friends in the Princeton area and at school, but did not indicate any great enthusiasm for either, nor did they indicate a preference for Princeton over California. Both parents agreed that the children were doing well in school and were well adjusted. Norton agreed that Karen and her mother were doing a splendid job in raising the children. Karen's mother, who has resided with her for approximately four-and-one-half years, would continue to live with her and the children in California.

The second reason Karen gave for wanting to move concerns a business opportunity in California. Karen has been offered a job working for a distributor of Mountain Valley Spring Water. The job is based on a trial period. If Karen successfully completes the trial period, she will enter into a partnership with the present San Diego distributor. This partnership would eventually result in her own distributorship and a good income.

In her affidavit in support of her motion for modification of the Divorce Decree, Karen also claimed that she was dating a man in the La Jolla, California area who wished to marry her. However, she wanted to know him better to be certain that she wished to marry him. Despite the reliance on this point by our concurring colleague, this issue was not pursued by either party nor considered by either of the courts below as a factor to be weighed in determining whether Karen should be allowed to move to California with the children.

Karen is 45 years old, has a fine arts degree from the University of Iowa, and last worked outside the home in 1973. Karen had made minimal and unsuccessful efforts to find employment and business opportunities in the Princeton area. Given her lack of business skills and experience, Karen found the franchise business an attractive employment opportunity because she could pursue it indefinitely and it was a relatively simple enterprise for which she did not need any specialized skills except selling.

Further, Karen testified that the children's relationship with their father would not be adversely affected by the move but might be improved because the children would be available to visit him 128 days per year, which compared favorably with the current visitation schedule. Karen calculated these days from the children's summer, spring, and Christmas vacations, and argued that extended periods of visitation might be better for the children than the present pattern of weekend visitation.

Norton presented no evidence contradicting Karen's claims as to the quality of life in California and her business opportunity. Instead, Norton opposed Karen's motion on the grounds that her reasons for moving were frivolous and that his Philadelphia-based business would not permit him to spend enough time in San Diego to carry on his previously close relationship with his sons.

Norton is a highly mobile businessman. He is president and majority stockholder of a liquor company with annual sales of approximately $80 million. Although his company's home office is in Philadelphia, he lives in an apartment in New York City, and his residence for voting and for "tax purposes" is Florida, where he has a hotel room. His company car is registered in Pennsylvania and he has a Florida driver's license. He travels constantly from Monday through Friday all year round, but visits his children on most weekends.*fn1 He travels to the west coast about three times a year, spending two or three days at a time there but not in the San Diego area.

Norton testified that he could not alter his business schedule, to make blocks of time available to accommodate his children, without making a significant financial sacrifice, adversely affecting the alimony and support that he would be able to pay Karen and the children. Finally, Norton claimed that he has a large, close-knit family in the Philadelphia area and that the

boys benefit from contact with this family, especially their aunts and cousins.

The trial court ruled that Karen would be permitted to remove the children from Princeton, New Jersey to San Diego, California. The Appellate Division reversed the trial court and imposed the further restriction that Karen be prohibited from relocating or from removing the children beyond a 100-mile radius of New York City.

We granted Karen's petition for certification. 96 N.J. 294 (1984). We now reverse the judgment of the Appellate Division and remand to the trial court for a rehearing of the motion and a determination consistent with this opinion.

II

N.J.S.A. 9:2-2 provides that children of divorced parents should not be removed from this jurisdiction without the consent of the noncustodial parent "unless the court, upon cause shown, shall otherwise order." N.J.S.A. 9:2-2;*fn2 see Helentjaris v. Sudano, 194 N.J. Super. 220 (App.Div.1984); Middlekauff v. Middlekauff, 161 N.J. Super. 84 (App.Div.1978); D'Onofrio v. D'Onofrio, 144 N.J. Super. 200 (Ch.Div.), aff'd o.b., 144 N.J. Super. 352 (App.Div.1976).

The predecessor of the present statute was enacted in 1902 as part of general reform legislation dealing with the custody

of children.*fn3 Although there is no specific legislative history concerning the purpose of the statute, the cases decided under the 1902 statute support the conclusion that its purpose was to preserve the right of visitation between the noncustodial parent and the child after the custody award. In Dixon v. Dixon, 72 N.J. Eq. 588 (Ch.1907), for example, the mother had been awarded custody of the children in New Jersey but the father had weekly visitation rights of which he regularly availed himself. The mother moved the children to Maine without securing court approval. The court held under the predecessor to N.J.S.A. 9:2-2 that:

It does not appear that it would be for the welfare of the children that he [the father] should not continue to see and interest himself in them. The strong presumption is that he should. I think the mother ought not to deprive the father of the opportunity of seeing them at short intervals, as she would do if she could keep them permanently in Maine. [ Id. at 594.]

Since it was unclear whether the mother had moved to Maine permanently, the court ordered a new hearing on that point. See also Francisco v. Francisco, 73 N.J. Eq. 313, 317 (Ch.1907) (recognizing father's right to visit his children in this state).

The statutory language affirms that the purpose of the statute is to preserve the rights of the noncustodial parent and the child to maintain and develop their familial relationship. This mutual right of the child and the noncustodial parent to develop and maintain their familial relationship is usually achieved by means of visitation between them. Because the removal of the child from the state may seriously affect the

visitation rights of the noncustodial parent, the statute requires the custodial parent to show cause why the move should be permitted. Because the legislation and the cases are silent as to what kind of and how much cause must be shown, we must decide that issue today.

The courts of other states have considered the issue of removal but have differed on what constitutes sufficient cause for removal. Several of these states have anti-removal statutes similar to N.J.S.A. 9:2-2. See Ill.Rev.Stat. ch. 40, § 609 (1977); Mass.Gen.Laws Ann. ch. 208, § 30 (West 1981); Minn.Stat. § 518.175(3) (Supp.1981); and S.D. Codified Laws Ann. § 25-5-13 (1981).

In Minnesota, the custodial parent's right to remove a child from the jurisdiction is limited only by the court's power to restrain removal when it would prejudice the rights of the child. In Auge v. Auge, 334 N.W. 2d 393 (Minn.1983), for example, the Minnesota Supreme Court held that a custodial parent's motion to remove a child from the jurisdiction should be granted unless the noncustodial parent established, by a preponderance of the evidence, that the move would not be in the best interests of the child. One reason that the Minnesota court took such a liberal stance on removal was that

[i]n the past, removal was commonly denied because of the potential loss of jurisdiction over custody issues. This concern has largely been met by adoption in 44 states of the Uniform Child Custody Jurisdiction Act. See, e.g., Minn.Stat. §§ 518A.01-.25 (1982). See generally Coombs, Interstate Child Custody: Jurisdiction, Recognition, and Enforcement, 66 Minn.L.Rev. 711 (1982). Further protection of the rights of both parents is afforded by the Parental Kidnapping Prevention Act of 1980, 28 U.S.C. § 1738A (Supp. V 1981). [ Id. at 399.]

Other states allow the child to accompany the custodial parent whenever the custodian has a legitimate reason and the move is consistent with the best interests of the child. See In re Marriage of Brady, 115 Ill.App. 3d 521, 71 Ill.Dec. 297, 450 N.E. 2d 985 (App.Ct.1983) (custodial parent makes prima facie showing by demonstrating a desire to move, a sensible reason for the move, and "some showing that the move is in the best

interests of the child."); Jafari v. Jafari, 204 Neb. 622, 624, 284 N.W. 2d 554, 555 (1979) ("The general rule in cases where a custodial parent wishes to leave the jurisdiction for any legitimate reason is that the minor children will be allowed to accompany the custodial parent if the court finds it to be in the best interests of the children to continue to live with that parent."); In re Matter of Ehlen, 303 N.W. 2d 808, 810 (S.D.1981) ("The majority of cases dealing with removal of a child from the jurisdiction support the rule that if a parent who has custody of a child has good reason for living in another state, removal will be permitted, providing such a move is consistent with the best interests of the child."); see also Hutchins v. Hutchins, 84 Mich.App. 236, 238, 269 N.W. 2d 539, 540 (Ct.App.1978) (decision whether to allow removal should be based on best interests of the child standard as mandated by Mich.Comp.Laws § 722.23).

In New York, on the other hand, "[d]isruption of the relationship between the noncustodial parent and the marital issue by relocation of the custodial parent in a distant jurisdiction will not be permitted unless a compelling showing of 'exceptional circumstances' * * * or a 'pressing concern' for the welfare of the custodial parent and child * * * is made warranting removal of the child to a distant locale." Courten v. Courten, 92 A.D. 2d 579, 580, 459 N.Y.S. 2d 464, 466 (App.Div.1983) (citations omitted).

The vast majority of states fall between Minnesota, which requires no showing of cause by the custodial parent if the noncustodial parent fails to present specific evidence that the move would not be in the child's best interest, and New York, which requires the custodial parent to show "exceptional circumstances" before removal should be approved. Most states, recognizing the sensitive and extraordinary importance of a decision affecting a parent-child relationship, attempt to balance the interests of the child in having fulfilling relationships with both parents, the custodial parent's right to settle wherever he or she pleases, and the right of the noncustodial parent to

maintain a relationship with his or her children through regular visitation. These determinations are not easily subjected to clear, bright-line tests but must be made on a case-by-case basis, depending, to a great extent, upon the circumstances of each case. See Dozier v. Dozier, 167 Cal.App. 2d 714, 334 P. 2d 957 (Dist.Ct.App.1959); Bell v. Bell, 112 So. 2d 63 (Fla.Dist.Ct.App.1959); Good v. Good, 79 Idaho 119, 311 P. 2d 756 (1957); Hale v. Hale, 12 Mass.App.Ct. 812, 429 N.E. 2d 340 (1981).

III

While this Court has not addressed the issue of when a court should allow removal of children from the state by the custodial parent, Judge Pressler's decision in D'Onofrio, supra, 144 N.J. Super. 200, is the leading case in this area. In both of the other New Jersey Appellate Division decisions interpreting N.J.S.A. 9:2-2, the courts have applied the standards set down in D'Onofrio. See Helentjaris v. Sudano, supra, 194 N.J. Super. 220; Middlekauff v. Middlekauff, supra, 161 N.J. Super. 84. In the present case both the trial court and the Appellate Division sought to apply the D'Onofrio standard but came to different conclusions based on their application of that standard to this case.

In D'Onofrio the court, in a thoughtful discussion, analyzed the considerations and the competing interests that must be weighed in a court's determination of whether removal should be permitted. Crucial to the D'Onofrio decision is the realization that after a divorce a child's subsequent relationship with both parents can never be the same as before the divorce when the family lived together. As stated in Helentjaris, supra, 194 N.J. Super. 220, "[t]he family unity which is lost as a consequence of the divorce is lost irrevocably, and there is no point in judicial insistence on maintaining a wholly unrealistic similation of unity." Id. at 229. The realities of the situation after divorce compel the realization that the child's quality of life and style of life are provided by the custodial parent. That the

interests of the child are closely interwoven with those of the custodial parent is consistent with psychological studies of children of divorced or separated parents. One researcher has concluded that

[o]f all factors related to the child's way of coping with loss [of a parent because of divorce or death], the role of the home parent seemed most central. Some years after the divorce or death, the well-being of the child appeared closely related to the well-being of the [home] parent. [ L. Tessman, Children of Parting Parents 516 (1978).]

Other investigators have found that there is an increased emotional dependence on the custodial parent after divorce and that children of all ages "were in trouble" when the home parent-child relationship was affected by stress on the home-parent, such as "loneliness and discouragement." J. Wallerstein & J. Kelly, Surviving the Breakup 114, 224-225 (1980).

Because the best interests of a child are so interwoven with the well-being of the custodial parent, the determination of the child's best interest requires that the interests of the custodial parent be taken into account. It is on this fundamental point that we disagree with the concurring opinion. We do not, as the concurrence alleges, equate the best interests of the child with the best interests of the custodial parent. We do maintain, however, that a determination of the best interests of the child requires taking into account the interests of the custodial parent. The concurrence's insistence that determination of a child's best interest should be made independent of, even if not exclusive of, the well-being of the custodial parent ignores the reality of life in the home of a single, divorced, custodial parent.

However, the custodial parent's well-being is not the only factor influencing the child's best interest in visitation cases. In suggesting that the standard we set fails to recognize a child's interest in maintaining his or her relationship with the noncustodial parent, the concurrence misreads our opinion. We emphasize throughout our ...


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