On appeal from the Superior Court of New Jersey, Chancery Division, Atlantic County, Docket No. FM-01-323-2000B.
Before Judges Cuff, Winkelstein and C.S. Fisher.
The opinion of the court was delivered by: Fisher, J.S.C.
Argued Telephonically: October 25, 2001
One month after entry of the divorce judgment, Lynn Mamolen ("Lynn") applied for permission to relocate to Lutherville, Maryland with the three children of her marriage to Lon Mamolen ("Lon"). After a seven-day hearing, the trial court rejected that application, finding the parties were in a joint custody relationship which avoided the traditional standards applied in such matters. Because the evidential record does not support the trial court's finding of a joint custodial relationship, we reverse and remand for further proceedings consistent with the methodology for considering removal of children from the jurisdiction as outlined in Baures v. Lewis, 167 N.J. 91 (2001).
The Supreme Court recently analyzed, once again, the proper approach to be taken when a divorced parent seeks to permanently remove the children of the marriage from the State. In Baures v. Lewis, the Court recognized that the seminal question is whether "it is a removal case or whether by virtue of the arrangement between the parties, it is actually a motion for a change in custody." If the parties' situation presents a true shared custodial relationship, then the right to remove a child, or children, from the jurisdiction requires a determination of whether there should be a change in the custodial arrangement. If, however, the custodial relationship is of the type more commonly found in most post-divorce situations – where one parent has the larger share of physical custody of the children – then the right to remove follows the process which has evolved from Cooper v. Cooper, 99 N.J. 42 (1984), to Holder v. Polanski, 111 N.J. 344 (1988), and lastly to Baures v. Lewis.*fn1 In essence, the right to remove when there is a true joint custody relationship turns on the "best interests" of the child, or children. When, however, there is some lesser shared relationship, then the right is governed by the "template" and the numerous factors set forth in Baures. This latter process includes the moving party's demonstration of a "good faith reason for the move and that the child will not suffer from it," and then a demonstration by the opposing party that the move is "either not in good faith or inimical to the child's interest." 167 N.J. at 118-19.
Experience informs that the ultimate outcome of such matters often turns on the placing of the burden of persuasion.*fn2 Accordingly, the question of whether a parenting relationship is truly shared has a significant impact on whether a parent will be permitted to remove a child from the jurisdiction. In recognizing that the Cooper/Holder analysis is inapplicable to a true shared custodial relationship, in Baures our Supreme Court expressly stated its agreement with Voit v. Voit, 317 N.J. Super. 103 (Ch. Div. 1998), where the parties' parenting relationship negated the relevance of the "sincere, good faith reasons" of the parent seeking removal and permission to remove turned on the "best interests" of the children. 167 N.J. at 114-15.
Because the trial court determined that the present situation is similar to Voit and the Cooper/Holder analysis inapplicable, our review of the trial court's denial of removal must initially focus on whether the Mamolens' relationship to each other and their children constitutes a true joint custodial relationship.
In considering the nature of the custodial relationship in this case, it is helpful but not conclusive to examine how the relationship was fixed by the judgment of divorce. In this case, the parties settled their custodial disputes by way of a separation agreement. The Mamolens agreed they would have
joint custody of the children born of the marriage with the Wife designated as the Parent of Primary Residence (PPR). The Husband shall be designated as the Parent of Alternate Residence (PAR). The children will spend alternate weekends with the Husband with the beginning and ending of the weekend to be agreed upon by the parties. Weekend parenting time shall consist of three (3) consecutive overnights, either Friday, Saturday and Sunday, or Thursday, Friday and Saturday. In addition to weekend parenting, the children may spend one (1) over-night every other week with the Husband.
The parties also agreed to alternate significant holidays and "grant[ed] the other a right of first refusal of additional parenting with the children in the event that either parent, or a member of his/her immediate family (e.g. the children's grandparent or future stepparent) is unable to personally provide care to the children for 12 hours or more during the normal parenting schedule."
Their separation agreement also states that
The Husband and Wife shall keep open communications between themselves and the children to share information concerning the health and educational progress of each of the children, and to permit the ...