Before Judges Baime, Carchman and Lintner.
The opinion of the court was delivered by: Lintner, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 15, 2000
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County.
Plaintiff, Kyron Henn-Lee, formerly Kyron McCoy, appeals an order of the Chancery Division, Family Part, denying her motion for permission to permanently move her daughter, Katherine Erin McCoy, from New Jersey to California. Plaintiff maintains that the Family Part judge erred in his application of the law to the facts established by the record. Defendant, Thomas McCoy, counters that the judge's conclusions that (1) plaintiff did not show a good faith reason for the move, and (2) the move would interfere with the best interest of the child, were supported by the factual record. We reverse and remand for further proceedings.
Plaintiff and defendant were married on April 12, 1991. Katherine was born on November 22, 1991. The infant suffered a stroke before she was born, which left her neurologically impaired. As a result, she is hemiplegic and wears a brace on her right leg, which is connected to her foot to help her walk. She has very little use of her right hand, for which she is given physical therapy. She also suffers from visual impairment and a seizure disorder, which has been treated with a fair amount of success with medication.
The couple was divorced in June 1994. Pursuant to a property settlement agreement, they have joint custody of Katherine, with plaintiff having physical custody. Defendant's visitation consists of one evening per week, two weeks in the summer (which he carries out by the use of extended weekends), and alternating weekends and holidays. Defendant has exercised his visitation regularly, and enjoys a very close relationship with Katherine.
Both parties remarried in 1997. Defendant lives with his current wife, Lydia, who is employed as a first grade teacher in the Ridgewood Public School System and enjoys a good relationship with Katherine. Katherine has a close relationship with defendant's mother, as well as Lydia's parents. Lydia's mother gives Katherine piano lessons on a weekly basis which, considering Katherine's disabilities, is a tremendous accomplishment. At the time of the hearing, defendant was employed at Patent IKG in Paramus, where he has worked for five years and earns a salary of $30,000 per year, along with health benefits, including medical, prescription drug and vision coverage for himself, his present wife and Katherine.
Plaintiff is currently separated from her husband, Mr. Lee, and intends to file for divorce. In 1998, she began working as a freelance graphics designer performing administrative consultation on web sites. She earned a total of $47,000 of which $26,000 was paid by one company, Online Imaginations (Online), the balance coming from freelance work for other companies. She did not receive any medical benefits. In August 1998, plaintiff received a job offer from Online in California, which consisted of a salary of $45,000, medical benefits, and the potential for stock options in the event the company went public. The offer would permit her to work at the Online office during the time that Katherine attends school and makeup the remainder of the eight-hour workday at home, enabling her to be with Katherine after school hours. Plaintiff traveled to California to investigate housing and the school district to determine whether it had facilities for Katherine's special needs. After meeting with school administrators, teachers and a behavior specialist, she learned that there was a place for Katherine at the Rossier School. Plaintiff's proposal was to reside in Brea, California, which she describes as a quiet community. She intends to rent a three-bedroom condominium unit, which has two baths and a large kitchen. There is a pool and a playground associated with the condominium complex. The Rossier School, which is equivalent to the school currently attended by Katherine, is located in Garden Grove California, approximately ten to fifteen minutes away. Plaintiff testified that she has one or two good friends in California who could provide the same support for her in caring for Katherine, similar to her existing situation in New Jersey.
Currently, plaintiff has a dating relationship with Philip Aranbula, who lives in California and is also involved in an internet business. She testified that accepting the job in California would afford her advantages that would include a stable salary, medical benefits for herself and Katherine, and a more conducive climate for Katherine who has a history of asthma. She also indicated that she would not have to travel as much in California and would work fewer hours than she currently does as a freelance consultant, thus freeing up more time to spend with Katherine.
Plaintiff proposed the following visitation schedule for defendant: (1) two weeks between June and July coinciding with Katherine's two week break between the end of the school year and the beginning of a special session in July; (2) the entire month of August; (3) the school break periods occurring between Christmas and New Years, in February and April, totaling three weeks. According to plaintiff, this would afford defendant the same total time (66 days) that he currently enjoys. In addition, plaintiff proposed building a web site, which would include the use of camera-computer technology to give defendant, his family and friends, the ability to communicate directly with Katherine on a daily basis and review her school work and records. Defendant would be afforded daily face-to-face communication with Katherine, albeit through an electronic medium.
Defendant testified that he felt it would hurt his relationship with Katherine if she was away from him for long periods of time. Both parties confirmed that Katherine's relationship with her grandparents is wonderful. Defendant and his wife maintain that it would be in Katherine's best interest to remain in New Jersey, given the love she receives from her extended family and the environment in which she is doing so well. Lydia also confirmed the close loving relationship Katherine has with plaintiff. She testified that, although at times she finds herself in a mothering position, she recognizes that she is not Katherine's birth mother. She does not believe that Katherine should be removed from her mother.
Defendant contends that the evidence, which demonstrates the significant support Katherine receives, justifies the trial judge's conclusion that a move to California would be adverse to Katherine's best interest.
In Holder v. Polanski, 111 N.J. 344 (1988), the Supreme Court modified the two-prong analysis previously established in Cooper v Cooper, 99 N.J. 42, 56 (1984). It replaced the first prong which required that a custodial parent show a real advantage to the move, with the proviso that any good faith reason to move will suffice. The Court, however, retained the second prong which required that the move would be permitted only if it did not interfere with the best interest of the child or substantially change the visitation rights of the non-custodial parent. Levine v. Bacon 152 N.J. 436, 439-40 (1998). The elimination of the need to show a real advantage was based upon the realization of the disparate treatment of custodial and non-custodial parents. Holder, supra, 111 N.J. at 349. The Court observed that an award of custody unfairly inhibits the custodial parent from moving elsewhere, while giving the non-custodial parent the freedom to move about the country without restriction. Ibid. Thus, a trial judge's first inquiry is the motivation for the move. Any sincere good-faith reason for the move is sufficient. Id. at 353. In order to reach a determination that there is an absence of good faith on the part of the custodial parent, ...