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Baures v. Lewis

April 23, 2001

CARITA L. BAURES, PLAINTIFF-APPELLANT,
v.
STEVEN R. LEWIS, DEFENDANT-RESPONDENT.



The opinion of the court was delivered by: Long, J.

Argued January 17, 2001

On certification to the Superior Court, Appellate Division.

Ideally, after a divorce, parents cooperate and remain in close proximity to each other to provide access and succor to their children. But that ideal is not always the reality. In our global economy, relocation for employment purposes is common. On a personal level, people remarry and move away. Non-custodial parents may relocate to pursue other interests regardless of the strength of the bond they have developed with their children. Custodial parents may do so only with the consent of the former spouse. Otherwise, a court application is required.

Inevitably, upon objection by a non-custodial parent, there is a clash between the custodial parent's interest in self- determination and the non-custodial parent's interest in the companionship of the child. There is rarely an easy answer or even an entirely satisfactory one when a non-custodial parent objects. If the removal is denied, the custodial parent may be embittered by the assault on his or her autonomy. If it is granted, the non-custodial parent may live with the abiding belief that his or her connection to the child has been lost forever.

Courts throughout the country, grappling with the issue of relocation, have not developed a uniform approach. Ann M. Driscoll, Note, In Search of a Standard: Resolving the Relocation Problem in New York, 26 Hofstra L. Rev. 175, 176 (1997). Some use a presumption against removal as their point of departure; others use a presumption in favor of removal; still others presume nothing, but rely on a classic best-interests analysis. Id. at 178.

We have struggled to accommodate the interests of parents and children in a removal situation in our prior cases. Holder v. Polanski, 111 N.J. 344 (1988); Cooper v. Cooper, 99 N.J. 42 (1984). In so doing, we have developed something of a hybrid scheme. Although it is not based upon a presumption in favor of the custodial parent, it does recognize the identity of the interests of the custodial parent and the child, and, as a result, accords particular respect to the custodial parent's right to seek happiness and fulfillment. At the same time, it emphasizes the importance of the non-custodial parent's relationship with the child by guaranteeing regular communication and contact of a nature and quality to sustain that relationship. Further, it incorporates a variation on a best interests analysis by requiring proof that the child will not suffer from the move.

We revisit the issue in this appeal, not only to resolve the matter before us, but because of what we perceive as confusion among the bench, Bar, and litigants over the legal standards that should apply in addressing a removal application, and particularly over what role visitation plays in the calculus.

I.

Carita Baures (Baures), a native of Wisconsin married Steven Lewis (Lewis), a native of Iowa and an officer in the United States Navy, on October 5, 1985, in Rothschild, Wisconsin. Their only child, Jeremy, was born on June 24, 1990. During the marriage, the couple lived in the various locations in which the Navy billeted them. In 1994, they moved to New Jersey when Lewis was stationed in Leonardo.

At age two, Jeremy began to exhibit developmental difficulties. By 1994, Jeremy, then aged four, was diagnosed with Pervasive Developmental Disorder (PDD), a form of autism.*fn1 Over the next few years, through trial and error, the parents arranged an effective therapeutic and educational regimen for Jeremy through a combination of public school and the Douglass College Outreach Program.

In 1995, recognizing that their financial resources were being taxed to the limit, Baures and Lewis discussed moving to Wisconsin. Baures' parents live in Wisconsin and are retired school teachers who offered to help care for Jeremy while Baures and Lewis worked. According to both parties, the couple planned to move to Wisconsin after Lewis was discharged from the Navy in 1998. In anticipation of the discharge, Baures' parents sold their home in Schofield, Wisconsin and moved to Galesville because, according to them, it was a short distance to the Chileda Institute (Chileda), a Program for autistic children. Lewis flew to Wisconsin to research job opportunities.

In 1996, escalating marital discord brought the case to court. Lewis sought custody of Jeremy because he believed that Baures was going to remove the child to Wisconsin. One day before the hearing, Baures filed a complaint for divorce alleging extreme cruelty. In response to Lewis's application for custody, Baures denied that she had any intention of moving Jeremy out of New Jersey. The parties then entered into a consent order that provided for custody and visitation and restrained both parties from leaving New Jersey with Jeremy. Baures and Lewis separated in late 1996. In April 1997, Baures filed an amended complaint for divorce requesting permission to relocate to Wisconsin. A three-day trial was held to resolve the issue.

At trial, Baures claimed that she should be allowed to relocate to Wisconsin because the parties had limited funds and could no longer afford to live in New Jersey without the help of her parents. Without a vehicle (Lewis had taken the family car), Baures had no way to get Jeremy to his special programming or to his doctors. Moreover, because Jeremy is a child with special needs, he could not be admitted to regular day care. Baures testified that in Wisconsin, her parents would be able to provide child care and shelter for her and Jeremy so that she could work.

Although Baures holds a master's degree in human resources management that she obtained in 1989, she never worked in that field and has held only part-time cleaning and baby-sitting jobs since Jeremy was born. She attempted to find more suitable employment but, of the twenty-four jobs in her field that she researched, Baures testified that none was able to provide child care for Jeremy because of his special needs.

In June of 1996, Baures' parents came to New Jersey to help her care for Jeremy and remained for over a year after Lewis took Baures' name off the checkbook, credit cards and savings account, and denied her the use of the automobile. In that time, Baures' father transported Jeremy to and from his programming, and provided additional child care. In total, Baures' parents paid her in excess of one-thousand dollars per month to supplement the court ordered child support she received in the amount of one-hundred dollars per week.

Baures testified that the Chileda Institute offers outreach programming to children who have been diagnosed with autism or PDD. The program is similar to the Douglas Program in that it provides trained professional therapy for the child at home. Chileda is located within twenty minutes of Baures' parents' house. Baures inquired whether Jeremy would be eligible for services at Chileda and faxed the school Jeremy's diagnostic materials and other documentation. A representative of Chileda responded that, based on the materials she had received, Jeremy would be eligible. She could not, however, say specifically what programming would be provided until there was an accurate assessment of Jeremy to determine what approach should be incorporated into the home program. Baures conceded that, although her father visited Chileda, she never did so, and that what she knew about the program was elicited from telephone calls, literature, and her father's visit. Baures offered no information regarding what services are available in the Wisconsin public schools.

Baures acknowledged that Lewis should have ongoing contact with Jeremy. To encourage the relationship, she stated that Lewis could visit Jeremy one week a month and stay in her parents' basement free of charge. That offer was reiterated by Baures' father. In addition, Baures agreed to pay half of the transportation costs from New Jersey to Wisconsin if Lewis could obtain an economical rate.

On cross-examination, Baures testified that Lewis was a good father to Jeremy, and that his presence in Jeremy's life is important to the child's progress. Moreover, she acknowledged that in the initial action instituted by Lewis to prevent her from moving to Wisconsin, she had stated that if Jeremy was to leave the State of New Jersey, he would lose his relationship with his father and would be prevented from attending the Douglass Program, the best available program, both of which would adversely affect his progress.

Joan Hurst, a coordinator at the Douglass Program, testified at trial on Baures' behalf. Hurst was offered and accepted as an expert in the field of autism and PDD. Hurst explained that a child with autism needs a highly structured, full-day program beyond normal school hours that teaches and applies behavior modification techniques throughout the day. Hurst explained that a strong family support system is important because:

[i]t's really the basis of the child's program. The school and the professionals can lay the foundation and show the family what to do, but it needs follow through in all areas of their lives. And since home is really the most common place for them and in their security and where they are most of the time, everything needs to continue when they come home from school. And it needs to continue to go on with the family at home.

When asked what a family member might have to do to continue home programming, Hurst went on:

every minute is a teaching minute . . . especially with Jeremy having the diagnosis of autism, since language is such an issue, there should be constant modeling of language. There should be constant modeling of appropriate reactions to situations . . . . There should be constant teaching on how to successfully complete daily activities of the day. And constant teaching and modeling and prompting of what is normal and acceptable to society of things that we go through each day.

Hurst made several recommendations with respect to Jeremy that include the following: that any program for Jeremy must be highly structured and staffed by professionals experienced in the field of autism; have a low student/teacher ratio; provide appropriate peer models; operate on a twelve month basis; support the family; offer a trained professional to assist Jeremy as a shadow,*fn2 and provide speech therapy sessions as needed. She did not render an opinion regarding whether the Wisconsin public schools and Chileda could provide those services.

At the time of the hearing, Lewis, who holds a bachelor's degree in economics, was employed in the United States Navy, and had been for over nineteen years. His rank was that of a chief petty officer, electronics technician. He indicated that his ultimate career goal is to be an electrical engineer, but that he will be required to take further courses. Further, he claimed, based on advertisements in the newspaper and talking with people in the area, Galesville, Wisconsin offered no jobs. He stated that he has no property or family in Wisconsin, however, his mother lives in Minnesota, about a five-hour distance from Wisconsin. At the time of the hearing, his visitation schedule was two afternoons a week from 4:30 p.m. until 7:30 p.m. and alternate weekends.

Lewis testified that his command would not let him travel to Wisconsin one week a month to visit his son. Regardless, he stressed that he could not visit at the Baures's house due to the estranged relationship with their daughter. Lewis stated that Jeremy will regress if he is separated from him for an extended period of time.

The trial court denied the removal. Although acknowledging that Baures had a good faith reason to move (financial and emotional stability and caregiving by her parents), the court held that the move would adversely affect Lewis' visitation with Jeremy; that Lewis could not visit regularly or relocate because of his Navy service; and that he does not have the financial resources to travel back and forth to Wisconsin. Further, the court held that Baures had not provided sufficient evidence that the educational opportunities for Jeremy in Wisconsin are comparable to that which he was receiving in New Jersey. Accordingly, the court held it was not in Jeremy's "best interests" to move to Wisconsin.

After being denied permission to remove Jeremy from New Jersey, Baures moved for reconsideration. The court entered a Judgment of Divorce in February 1998, and ordered a "best interests" evaluation by Dr. Amy Altenhaus. Although there was no issue as to custody, Dr. Altenhaus stated her opinion that it was in Jeremy's best interest that his mother continue as the primary custodial parent. However, Altenhaus found that Baures and Lewis complemented each other's parenting styles. For example, Altenhaus observed that Baures attends to the everyday details of Jeremy's life, and is caring and supportive. In contrast, she found that Lewis wanted desperately for Jeremy to be "normal" and seemed "motivated to do whatever he can to help this boy be ?normal.'" Furthermore,

[w]hile [Mr. Lewis] may need to have a more realistic picture of what is possible for Jeremy, nonetheless his style with Jeremy is certainly important as well. Mr. Lewis gives Jeremy more room to explore and to do rough and tumble play. Mr. Lewis will take him places and let him explore more on his own without some of the structure that Ms. Baures imposes. While this structure is very important for Jeremy's acquisition of skills, it is also important that children like this have a chance to explore their environment in a less structured manner as well . . . Jeremy clearly loves and enjoys being with both of his parents.

She stated that a move to Wisconsin "does not seem" to be in Jeremy's interest because Jeremy was doing well in East Brunswick, and because he would be unable to sustain a long distance relationship with his father who could not relocate because of his Navy commitments. Reconsideration was denied.

Lewis was discharged from the Navy on July 31, 1998. He found a full-time job in Edison as an electronics technician at a starting salary of $26,500, and a part-time job as a quality assurance tester for $9 an hour. As a result of Lewis' discharge, Baures requested the trial court to conduct a hearing on the issue of whether Lewis could relocate to Wisconsin pursuant to the requirements of Rampolla v. Rampolla, 269 N.J. Super. 300, 307-08 (App. Div. 1993). Rampolla holds that in a removal case, the court should inquire about the capacity of the non-custodial parent to relocate as a method of ensuring the vitality of a shared custody arrangement. Id. at 307. Lewis testified that he had investigated job opportunities in Wisconsin, but had no success. He said that the jobs that were available in Galesville, a very small town, were not in his area of expertise and were low paying. He identified only two jobs that were commensurate with his skill level, but claimed that they were located in Milwaukee, a six-hour drive from Galesville. Lewis said that he had considered working at IBM, located in nearby Rochester, Minnesota, but that he did not have the necessary digital electronics background or computer skills.

To counter Lewis's arguments, Baures offered the testimony of Arnold Gelfman, an employability and vocational expert from the Career Choice Institute of New Jersey. Gelfman testified in detail, concluding that Lewis had significant job opportunities as an electronics technician in Wisconsin and Minnesota at comparable or higher wages than in New Jersey and that the availability of such employment would increase at greater rates between 1994 and 2005 in Wisconsin and Minnesota than in New Jersey.

Lewis downplayed those statistics and said that they did not provide information about exactly where in Wisconsin and Minnesota those jobs could be found; did not identify any particular employer or industry in either state that had an immediate need for electronics' technicians; did not consider the fact that his expertise is limited to analog electronics; and did not recognize that not all electronics' technicians have the same skills. On cross-examination, Lewis acknowledged that his entire job search consisted of looking at classified ads on the Internet and that he never sent a letter or made a phone call to any potential employer in Wisconsin or went to that state to seek employment.

Based on the Rampolla hearing, and the testimony from the 1997 trial, the trial court affirmed its denial of Baures' motion. In so doing, the court stated that Baures was required to prove "the prospective advantages" of the move and that she had failed to do so. The court reaffirmed the conclusion that Baures' motion was made in good faith but noted that Jeremy is doing well in New Jersey; that the proximity of both parents is important to a special needs' child; and that there was insufficient evidence adduced to show that Lewis could obtain employment in Wisconsin at a location near Jeremy. Most importantly, in denying removal, the court relied on the fact that Baures did not provide adequate evidence of the comparability of educational and therapeutic facilities available to Jeremy in Wisconsin.

The Appellate Division affirmed the ruling in an unpublished decision. We granted certification. Baures v. ...


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