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O'Connor v. O'Connor

March 27, 2002

KATHLEEN M. O'CONNOR, PLAINTIFF-APPELLANT,
v.
WILLIAM J. O'CONNOR, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-11337-94.

Before Judges Baime, Fall and Axelrad.

The opinion of the court was delivered by: Fall, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: February 21, 2002

In this post-judgment matrimonial matter, we again address the troubling issue of a parent's application to remove the child of the dissolved marriage to another state as a result of that parent's need to relocate. Justice Long succinctly posed the dilemma as follows:

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. [Baures v. Lewis, 167 N.J. 91, 96-97 (2001).]

When relocation of one parent is certain, the ultimate dilemma facing the court is the vexatious reality that there is no result that satisfactorily meets the needs of the parties or the child. In circumstances where the parent has a healthy, meaningful relationship and bond with the child, there are few circumstances where the judicial determination will not adversely affect the parties and the child. If removal is granted, the nature of the relationship and bond between the parent left behind and the child changes and is at risk. The same result occurs as to the relationship and bond between the relocated parent and the child if removal is denied. Additionally, removal actions often create, or fortify, walls of animosity between the parents, furthering the negative impact to all concerned. The result is hard and predetermined; no one wants it, yet the consequences are inevitable. It is against this dreary context that we consider this appeal.

Plaintiff, Kathleen M. O'Connor, appeals from an order entered on September 25, 2001, after a plenary hearing, denying her application to remove and relocate the parties' child to the State of Indiana and designating defendant, William J. O'Connor, as the child's primary residential custodian.

We hold that in determining the standard to be applied to a parent's removal application, the focus of the inquiry is whether the physical custodial relationship among the parents is one in which one parent is the "primary caretaker" and the other parent is the "secondary caretaker." If so, the removal application must be analyzed in accordance with the criteria outlined in Baures, supra, 167 N.J. at 116-17.

If, however, the parents truly share both legal and physical custody, an application by one parent to relocate and remove the residence of the child to an out-of-state location must be analyzed as an application for a change of custody, where the party seeking the change in the joint custodial relationship must demonstrate that the best interests of the child would be better served by residential custody being primarily vested with the relocating parent.

In determining whether the parties truly share joint physical custody, although the division of the child's time with each parent is a critical factor, the time each parent spends with the child must be analyzed in the context of each parent's responsibility for the custodial functions and duties normally reposed in a primary caretaker.

Here, we conclude the findings and conclusions of the trial court that the parties truly share jointly both legal and physical custody of their child is supported by substantial, credible evidence in the record. We affirm the court's rejection of plaintiff's application for removal.

The journey of the parties to this point began with their marriage on September 8, 1989. Ryan William O'Connor was born of their marriage on October 16, 1991.

The parties encountered marital problems and separated in February 1993, which led to the filing of a divorce action. On November 15, 1994, the parties appeared in the Family Part and their counsel placed an oral agreement between them on the record, to which they assented, and the marriage was dissolved.

Subsequently, on March 7, 1995, the parties entered into a written property settlement agreement memorializing the terms of their oral agreement. The written agreement provided, inter alia, that the parties shall have joint custody of Ryan, with plaintiff having residential custody subject to the reasonable and liberal parenting time of defendant as mutually agreed upon by the parties. This common resolution vested the legal custody of Ryan jointly with both parties on issues pertaining to the health, education and welfare of the child, and vested primary physical custody of Ryan with plaintiff. See Pascale v. Pascale, 140 N.J. 583, 595-97 (1995); Beck v. Beck, 86 N.J. 480, 486 (1981).

On March 23, 1995, a form of final judgment of divorce was executed, incorporating the terms of the property settlement agreement. Subsequent to the divorce, both parties continued to reside in Bergen County in relatively close proximity; plaintiff resided in Mahwah with Ryan and defendant in Hawthorne.

The facts found by the trial court after the plenary hearing were, as follows. At the time of Ryan's birth, plaintiff worked for Kids R Us as a buyer; she returned to work approximately eight months after Ryan's birth. Defendant worked for Verizon in the installation and repair division.

After their separation, defendant began visiting with Ryan at least once each week. Shortly thereafter, defendant began parenting-time sessions with Ryan each week on Saturday overnight to Sunday.

The role of defendant in Ryan's everyday life began to change as plaintiff's employment responsibilities changed. Plaintiff became employed with Aquarius, Ltd., an accessory company, on September 27, 1993 as an assistant senior buyer, with a substantial increase in salary. Aquarius had its parent offices in St. Louis, Missouri, and also had an office in Manhattan, from which plaintiff worked.

After the parties separated, plaintiff hired a nanny who, with the assistance of plaintiff's mother, cared for Ryan. Ryan attended a pre-school facility part time at first, then full time. Defendant began to pick up Ryan from pre-school on days when plaintiff was unable to do so.

When Ryan began kindergarten, he went to school for a half day and then was bused to the YMCA, where he stayed until mid- afternoon, when a sitter hired by plaintiff picked Ryan up and brought him to plaintiff's residence. Beginning in the first grade, Ryan was brought to a before-school care program, and then to an after-school care program three days each week until 6:00 p.m., when he was picked up by plaintiff. The other two days, defendant picked Ryan up from the after-school care program at approximately 4:30 p.m. During school vacations, Ryan either attended the YMCA program or plaintiff took off from work and cared for him. When Ryan was sick, plaintiff would either take off from work or plaintiff's mother would care for Ryan.

In 1995, plaintiff was promoted as the head of designer merchandising and was required to travel internationally, mostly to Asian countries, at least twice each year. During most of those trips defendant and plaintiff's mother would share the caring responsibilities for Ryan.

In January 1996, defendant's job duties changed to that of a construction splicer, and his work hours were changed to 7:00 a.m. to 3:00 p.m., enabling him to expand his parental role in Ryan's life.

In January 1999, plaintiff's mother moved to California and was no longer able to care for Ryan. At or about that time, the nature of plaintiff's job changed such that she stopped traveling internationally, but was required to travel more domestically. Beginning in January 1999, when plaintiff was not traveling, defendant picked up Ryan from school two or three days each week and kept Ryan with him until approximately 7:30 or 8:00 p.m., when he returned Ryan to plaintiff's home. When plaintiff was traveling, Ryan would stay overnight with defendant. Defendant would pick up Ryan from school, help him with his homework, take Ryan to his sporting events and feed him dinner. When asked, defendant would change his morning work hours so that he could take Ryan to school in the morning.

The evidence at the plenary hearing disclosed that during the 911 days from January 1, 1999 up until commencement of the plenary hearing in 2001, plaintiff traveled 278 of those days, during which defendant solely cared for Ryan. The parties also divided the responsibility for driving Ryan to and from his school on an approximately equal basis. In 1999, defendant picked up Ryan from school 125 times, plaintiff doing so 46 times; in 2000, defendant picked up Ryan from school 123 times, with plaintiff doing so 60 times. In 2001, up until the time of plaintiff's move to Indiana, defendant did so 68 times, with plaintiff picking up Ryan from school on 35 occasions. On the other hand, plaintiff dropped off Ryan at school on significantly more occasions than did defendant during 1999, 2000, and 2001.

The records produced by defendant at the hearing demonstrated that during 1999, up until plaintiff's move to Indiana in June 2001, defendant had Ryan with him for 176 weekend days and 134 weekend-day overnights, whereas plaintiff had Ryan with her on 68 weekend days and 105 weekend-day overnights. During 1999, up until plaintiff's move to Indiana in June 2001, defendant had Ryan with him overnight on 298 non-weekend days and plaintiff had Ryan overnight with her on 533 non-weekend days overnight.

The evidence established that the parties shared the custodial responsibilities and duties in meeting Ryan's needs; both parties purchased clothing for Ryan; plaintiff primarily attended to Ryan's religious instruction and his medical appointments and care, although defendant participated; defendant took Ryan to sign-up for his various sporting activities such as baseball, basketball and soccer, and attended almost all of Ryan's practices and games; plaintiff attended all of Ryan's baseball games unless she was traveling; defendant attended all Ryan's events at school, such as concerts or plays. The parties also shared the responsibility for attending parent-teacher conferences, and defendant attended all of the back-to-school nights. Defendant went on a school field trip with Ryan to the Museum of Natural History. Defendant also signed most of Ryan's report cards.

The evidence also demonstrated that Ryan had a close relationship with his extended family members. Ryan saw his paternal grandparents at least once each week and the grandparents sometimes attended Ryan's sporting events. Ryan considered his twin paternal male cousins "like brothers" and saw them at least once or twice each week, and they attended each other's sporting events. Ryan also had two close friends in Mahwah.

In February 2000, plaintiff began a relationship with Christopher Love, who lived in Indianapolis, Indiana. Mr. Love works as a commercial salesman in his family's heating and cooling business in Indianapolis. Mr. Love owns thirteen percent of the business and was being groomed to take over its operation.

Plaintiff and Mr. Love became engaged in February 2001 and planned to marry in June 2002. By 2001, plaintiff had attained the position of a national sales manager and her employer agreed to allow plaintiff to retain her position and work in their Indianapolis office.

On February 19, 2001, plaintiff and Mr. Love executed a contract for the purchase of a home in Indianapolis. Closing of title took place on March 30, 2001. Plaintiff was unaware that she needed the permission of defendant, or the court, to remove Ryan from New Jersey to take up residency in Indiana. Plaintiff intended to relocate to Indiana with Ryan at the end of June 2001.

When defendant learned of the planned move he objected. Both parties retained counsel and attempted to reach an agreement. However, while plaintiff focused on a parenting-time schedule for defendant that would provide him significant time with Ryan, defendant maintained he wanted to assume residential custody of Ryan in New Jersey and was willing to move from Hawthorne to ...


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