On certification to the Superior Court, Appellate Division.
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
In this appeal, the Court must determine whether the standard for removal of minor children of divorce, established in Baures v. Lewis, 167 N.J. 91 (2001), applies when a custodial parent seeks to relocate a child to a foreign nation.
Erika MacKinnon met Ronald MacKinnon in 1990 when Mr. MacKinnon was stationed in Okinawa as a member of the United States Marine Corps. The couple married in the United States in 1991. Mrs. MacKinnon learned English, in part, by attending classes at a community college. She worked part-time until 1996, and then obtained full-time employment as an administrative assistant at the Edison office of a Japanese company. After their daughter Justine was born in 2000, Mrs. MacKinnon stopped working to stay home and care for their child. However, the marriage deteriorated, and Mr. MacKinnon left Mrs. Mackinnon in 2002. Since 2003, Mr. MacKinnon has resided with his girlfriend, with whom he has one child.
Mrs. MacKinnon remained the child's primary caregiver, but eventually returned to work -- baby-sitting, housekeeping, and providing in-home massage therapy. She earns approximately $900 a month from those jobs, but continues to devote significant time to her child care responsibilities. Mr. MacKinnon, a foreman for a construction company, is an hourly employee and earns approximately $60,000 per year. He also receives significant financial support from his mother.
Mr. MacKinnon filed for divorce in 2004. Mrs. MacKinnon filed a counterclaim and also requested permission to remove Justine to Japan. Pursuant to the divorce judgment entered in 2006, Mr. MacKinnon has parenting time with Justine every weekend from Friday through Saturday evening. At the hearing on the removal request, Mrs. MacKinnon testified that she has no family and few friends in the United States. She hopes to return to Okinawa, where she has a strong support network composed of many friends and family. She also noted the job opportunities in Japan, where she could use her knowledge of the English language and earn enough money to sustain a comfortable middle-class lifestyle. Importantly, Justine is well acquainted with her Japanese family, and has visited them annually from 2000 to 2004 for months at a time.
Mr. MacKinnon testified that he had no allotted vacation time and travel to Japan for extended periods of time and prolonged vacations with Justine would create substantial financial and familial hardships. The court-appointed expert, a family psychologist, testified that Mrs. MacKinnon exhibited an "intensely fearful" and "depressed" mood, and has had difficulty establishing close relationships in the United States. He concluded that if Mrs. MacKinnon is not permitted to return to Japan, her eventual depression would negatively impact Justine. The expert also testified that Justine, a bilingual, dual citizen, is an extroverted child capable of handling the adjustment of relocating to Japan. The expert concluded that both parties loved their daughter and would comply with a court-ordered visitation plan, and therefore recommended approval of Mrs. MacKinnon's request for removal.
The trial court granted Mrs. MacKinnon's application for removal. Applying the factors established by this Court in Baures, it concluded that Justine's best interests would be served by the relocation. In reaching that conclusion, the trial court found that Mrs. MacKinnon was unhappy and exhibited symptoms of depression, and that she likely would flourish in a supportive familial environment in Japan. The court further observed that Mrs. MacKinnon would enjoy a reduced cost of living in Japan and would not have difficulty finding employment. The trial court also accepted the expert's conclusion that Mrs. MacKinnon would foster a positive relationship between Justine and her father.
The trial court addressed Mr. MacKinnon's fear that because Japan is not a party to the Hague Convention, a multilateral treaty that seeks to ensure that rights of custody and access are respected in other countries, there would be no redress if Mrs. MacKinnon wrongfully withheld visitation. The court rejected the argument that there should be a per se bar to international removal to non-party nations like Japan. The trial court found Mr. MacKinnon's fear that he would "lose his daughter" to be unfounded, observing that Mrs. MacKinnon had obeyed all previous orders. The court imposed several conditions, including that Mrs. MacKinnon was to bear financial responsibility for returning Justine to New Jersey for visitation three times per year, and she was required to permit and finance telephone and webcam communication between Justine and Mr. MacKinnon.
In an unpublished, per curiam opinion, the Appellate Division affirmed. The Supreme Court granted Mr. MacKinnon's petition for certification.
HELD: The Baures factors apply to the international removal context, and the trial court properly applied those factors to the present circumstances in granting the removal request.
1. Under N.J.S.A. 9:2-2, removal is not permitted "without the consent of both parents, unless the court, upon cause shown, shall provide otherwise." This Court established a two-prong test that requires the custodial parent to present a good-faith reason for the move and to demonstrate that the move would not interfere with the best interests of the child or the visitation rights of the non-custodial parent. In Baures, the Court enumerated twelve factors for courts to consider in assessing whether to permit removal. Some of these factors consider whether the custodial parent is motivated by a good-faith reason for the move, several address the removal's impact on the non-custodial parent's rights, and still others consider the potential harm to the child. Additionally, the twelfth factor is a catch-all, referring to "any other factor bearing on the child's interest." (pp. 11-14)
2. Mr. MacKinnon contends that because the implications of an international removal are so distinguishable from interstate removal, stricter standards than those enumerated in Baures are required to safeguard the custodial rights of the non-removing parent. The Baures test appropriately balances the concerns implicated in either interstate or international removal. The standard also provides flexibility for courts to decide the appropriateness of foreign travel. Courts can employ the twelfth, catch-all factor to address special concerns of international removal, such as Hague Convention membership, cultural and social concerns, feasibility of visitation, and enforceability of parental rights. Thus, the principles underlying N.J.S.A. 9:2-2 and the legal standard established in Baures are equally applicable to requests for either international or interstate travel. (pp. 14-16)
3. Admittedly, international removal is more complex than interstate removal and courts called on to decide such disputes should apply Baures expansively to adapt to international circumstances. For example, in Abouzahr v. Matera-Abouzahr,
The opinion of the court was delivered by: Chief Justice Zazzali
After fifteen years of marriage, Erika MacKinnon, a Japanese citizen, and Ronald MacKinnon divorced. Claiming that she is isolated and unhappy in the United States, Mrs. MacKinnon requested permission, pursuant to N.J.S.A. 9:2-2, to return to her home country with the couple's minor daughter Justine. The trial court granted the request, finding that Mrs. MacKinnon had a good-faith reason for the move and that relocation would serve the daughter's best interests. The Appellate Division affirmed.
In this appeal, we must determine whether the standard for removal of minor children of divorce, established in Baures v. Lewis, 167 N.J. 91 (2001), applies when a custodial parent seeks to relocate a child to a foreign nation. Because the Baures factors are sufficiently flexible to accommodate the intricacies of international removal and because that standard promotes the best interests of the child, we hold that Baures applies to the international removal context. In doing so, we affirm the trial court's application of those factors to the present circumstances and its decision to grant the removal request.
Erika MacKinnon met Ronald MacKinnon in 1990 when Mr. MacKinnon was stationed in Okinawa as a member of the United States Marine Corps. After a year of courtship in Japan, and following Mr. MacKinnon's discharge from the military for drug use, the couple married in the United States in 1991. Although she became a permanent resident of the United States during the marriage, Mrs. MacKinnon never obtained United States citizenship and remains a citizen of Japan. Mr. MacKinnon states that both he and his wife considered the move to New Jersey to be permanent, but Mrs. MacKinnon explains that she believed that if it did not "work out" in the United States, the couple would return to Japan.
Although Mrs. MacKinnon did not speak English when she first came to the United States, she learned the language, in part, by attending English-as-a-second-language classes at a community college. She worked part-time as a waitress in a Japanese restaurant from 1993 until 1996, and then obtained full-time employment as an administrative assistant at the Edison office of a Japanese company. After Justine was born in 2000, Mrs. MacKinnon stopped working at the company to stay home and care for the child. However, the marriage deteriorated, and in 2002 Mr. MacKinnon left Mrs. MacKinnon. After his separation from Mrs. MacKinnon, Mr. MacKinnon usually visited Justine once every week or two for brief periods of time. Since 2003, Mr. MacKinnon has resided with his girlfriend, with whom he has a one-year-old son. Despite a prior history of intermittent drug and alcohol abuse, Mr. MacKinnon has remained drug-free and sober for several years.
Mrs. MacKinnon remained the child's primary caregiver and eventually returned to work -- baby-sitting, housekeeping, and providing in-home massage therapy. She earns approximately $900 a month from those three jobs, but continues to devote significant time to her child care responsibilities. Mr. MacKinnon, a foreman for a construction company, is an hourly employee and ...