On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County.
O'Brien, Havey and Stern. The opinion of the court was delivered by O'Brien, J.A.D.
Defendant appeals from an order permitting removal of his children to the State of Virginia and awarding counsel fees. Plaintiff cross-appeals from the amount of the counsel fee award. We affirm.
The parties were married on August 18, 1974. Two children were born of the marriage, Catherine Ann Christopher, born June 26, 1981, and Edward F. Christopher, Jr., born February 20, 1984. The parties were divorced by final judgment of April 16, 1986, which incorporated an agreement between the parties, dated October 9, 1985. The agreement provided for joint custody of the children which was defined as "the wife being the primary residential parent with the husband having open and
liberal time with the children." A schedule of visitation was set forth in the agreement.*fn1 It further provided that the father have an equal voice as to decisions pertaining to the health, education and welfare of the children, and that the parties confer with each other on all issues relating to education, religious upbringing, health and welfare of the children. Defendant was to have full access to the children's medical and school records and be informed of all school events in which parents are allowed to participate. Both agreed that the children be reared as Roman Catholics, and the defendant agreed to pay any costs for religious education.
Plaintiff had a tenured position as a school teacher in Rumson, and defendant is an attorney engaged in private practice which requires attendance at many evening meetings. On May 17, 1986, plaintiff married John Frederickson who for the last 11 years has been employed in the Fairfax County, Virginia school system as a school-based administrator. By motion returnable on June 13, 1986, plaintiff made an application to permanently move the children out of New Jersey.*fn2 At defendant's request, the court appointed Dr. Alan V. Bornstein, Ph.D. as an expert psychologist in the matter. Defendant also retained Dr. Robert C. Bransfield, M.D. as his independent expert. A plenary hearing on the removal application was heard on September 17, 18 and 19, 1986, during which the trial judge heard the testimony of the parties, the two experts and various other witnesses, and rendered his written decision authorizing plaintiff to remove the children to reside with her and her new
husband in Fairfax County, Virginia. This was embodied in an order, entered on October 7, 1986 and supplemented by an order dated November 17, 1986, setting forth a precise schedule of visitation and awarding plaintiff $3,500 towards her attorney's fee.*fn3 Defendant appeals and plaintiff cross-appeals from the amount of counsel fee awarded.
It is an unfortunate by-product of divorce that family units are severed requiring determinations as to the custody of children. To the extent possible, custodial arrangements are agreed to, or ordered by the court, which encourage the participation of both parents in the upbringing of the children. Unfortunately, the children must reside physically with one or the other of the parents, all or part of the time. Although the agreement in this case labeled the custody as "joint," physical custody of the children was in plaintiff with substantial visitation accorded to defendant. The term "joint" envisioned that each party have a voice as to decisions pertaining to the health, education and welfare of the children. We recognize that this arrangement enabled defendant to have regular visitation with his children and to share that visitation with his substantial extended family who live in the area of his home. On the other hand, after divorce, each party has a right to continue their lives as they see fit, including remarriage. However, in our mobile society, when that decision involves remarriage to a person from another state or country, a serious question arises as to with whom the children will reside and the effect of that decision on the noncustodial parent. This circumstance has spawned a substantial number of removal applications.
N.J.S.A. 9:2-2 in pertinent part provides:
When the Superior Court has jurisdiction over the custody and maintenance of the minor children of parents divorced, separated or living separate, and such children are natives of this State, or have resided five years within its limits, they shall not be ...