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Fry v. Fry

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 22, 2008

DAWN R. FRY, PLAINTIFF-RESPONDENT,
v.
THOMAS J. FRY, III, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, FM-08-210-06.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 2, 2008

Before Judges Messano and Chambers.

Defendant Thomas J. Fry, III, the father of two minor children, appeals from the order of January 9, 2008, allowing the children's mother, plaintiff Dawn R. Fry, to relocate with the children to the State of Arizona.

The parents were married in August 1999, and had two daughters, C.F. born in March 1998 and A.F. born in March 2001. The parents were divorced from bed and board on May 3, 2006. The Amended Final Judgment of Divorce of that date gave the parents joint legal custody with plaintiff being the parent of primary residence and defendant the parent of alternative residence.

The father had visitation with his daughters one weekday a week from 3:30 p.m. to 8:00 p.m. and from Friday at 3:30 p.m. to Saturday at 6:00 p.m., although he contended that often he would have the children Saturday night as well. He also spoke to them each day by telephone. The father attended parent-teacher conferences and communicated with the children's teachers. He took the children to their swim meets and was a coach for their softball teams. While the mother had the primary responsibility of taking the children to their softball games and Girl Scout meetings, the father would do so when she could not. The children also had regular contact with their paternal grandparents who live in New Jersey. Their maternal grandfather is also a New Jersey resident, but the mother's other relatives live out of state. In addition, the children have a close relationship with their half-brother, the father's son from his second marriage.

The mother sought to relocate with the children to Arizona, primarily for economic reasons. She calculated that her cost of living in Arizona would be $1,000 less a month than in New Jersey. The record indicates that she was having difficulty making ends meet in New Jersey. She had to borrow money from defendant's parents for four or five months in order to meet her mortgage payments. Her father paid her spring semester tuition at Gloucester County Community College where she was enrolled. By terms of the Judgment of Divorce, her alimony will terminate eighteen months from May 3, 2007. Further, she indicated her intent to pursue a nursing degree. A nursing program in New Jersey would be more expensive and would take four years, while the nursing program in Arizona was less expensive and would take only two years. She had secured admission into a college in Arizona that offered a nursing program. Her proposed school schedule in Arizona would enable her to drive the children to school and pick them up after school every day. She planned to support herself and the children while attending school with her share of the proceeds from the sale of the marital home and the support payments from the father.

Arizona offers a state funded Montessori School that the mother believed would be beneficial to her daughters, and the children would be able to pursue their activities in softball and Girl Scouts in Arizona. The father is a tenured special education teacher in the New Jersey public school system, teaching autistic children between the ages of three and eleven years old. It would not be feasible for him to move out of state.

Regarding parenting time, the mother proposed that the children would visit the father in New Jersey for one week in October, one week in November, two weeks at Christmastime, one week in the spring, and six weeks in the summer. All of these visits would coincide with school breaks and vacations. She noted that the children would be able to remain on the swim team in New Jersey since they would be here for six weeks in the summer. She agreed to pay for the children's transportation to New Jersey for these trips. If the father wanted to go to Arizona to visit the girls, he could do so in addition to seeing them pursuant to the above schedule. He could also maintain his daily telephone contact with the children, and the mother agreed to arrange for a webcam so that he could see his daughters during the call. While this proposed schedule would give the father more overnight stays than he currently has, it represented a significant diminution in his overall parenting time with the children, reducing his days with his daughters to seventy-seven days a year, when he now sees them at a minimum three days a week.

In opposing the move, the father questioned some of the mother's economic arguments, maintaining that she could work full time and go to school at night in New Jersey as so many people do. In addition, he expressed concern about the impact the move would have on his relationship with his daughters, stating:

I oppose the move to Arizona because, (a) I love my kids and I do not want to lose them . . . if they are moving there permanently, they are not coming back. . . . I oppose the move because I cannot attend parent/teacher conferences. I cannot attend sporting events. I cannot be involved in their everyday life. If their mother needs [someone] to pick [them] up which she has in the past on days that are not in my scheduled parenting days, then I am not there to do that. What if they - what if someone falls and breaks an arm? My daughter, Cora, broke her wrist two years ago and I took her to the hospital. What if she had to go to the hospital? I could not be there. I would want to be there even if it was not a parenting day. I want to be involved in my kids' lives.

Finding both parents credible witnesses who cared about the well-being of their children, the trial judge recognized the difficulty such situations present to the court, noting that whatever decision is made, one parent will be hurt. After considering the twelve factors set forth in Baures v. Lewis, 167 N.J. 91 (2001), the trial court granted the mother's motion to relocate with the children to Arizona and denied the father's cross-motion for custody. The father was granted parenting time for the weeks proposed by the mother, with the mother bearing the transportation costs of those visits; the father was also permitted phone contact at least three times a week; provision was made for additional parenting time if the father sought to visit the children in Arizona; and the mother was required to keep the father advised of any issues regarding the health, education and welfare of the children.

The father now appeals this decision contending that the legal standard set forth in Baures did not govern this application, that the trial court erred when considering whether a good faith basis existed for the move, and finally that even if the Baures standards governed the application, the court erred in its application of those standards to the facts of this case.

A parent seeking to leave the State with the minor children of the marriage must either obtain the consent of the other parent or the court's permission "upon cause shown" to do so.

N.J.S.A. 9:2-2. Where both parents share joint legal and physical custody, the application is treated as a change of custody and "the party seeking the change in the joint custodial relationship must demonstrate that the best interest of the child would be better served by residential custody being primarily vested with the relocating parent." O'Connor v. O'Connor, 349 N.J. Super. 381, 385 (App. Div. 2002). Where one parent is the custodial parent and the other parent is the non-custodial parent, a different standard applies. The custodial parent seeking to relocate out of the State with the child must show a "good faith reason for the move and that the child will not suffer from it" and present a proposed visitation schedule "as 'an important element of proof on the ultimate issue of whether the child's interest will suffer from the move.'" MacKinnon v. MacKinnon, 191 N.J. 240, 249, stay denied, __ U.S. __, 128 S.Ct. 7, 168 L.Ed. 2d 784 (2007) (quoting Baures v. Lewis, supra, 167 N.J. at 118, 122). The twelve factors set forth in Baures must be considered when evaluating such an application. Baures v. Lewis, supra, 167 N.J. at 116-17.

The threshold question then is whether the parents share joint legal and physical custody so that a change of custody is involved or whether one parent is the custodial parent and the other the non-custodial parent in which case the application is for removal. Baures v. Lewis, supra, 167 N.J. at 116. "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." O'Connor v. O'Connor, supra, 349 N.J. Super. at 385.

Here the trial court considered the mother to be the custodial parent and applied the Baures test. The record supports this approach. Although the father has joint legal custody with the mother, the facts do not support a finding that he also had joint physical custody with her. While the father is an actively involved parent and attends his daughters' extracurricular activities and parent-teacher conferences, exercises all of his parenting rights, and voluntarily extends his time with them beyond the agreed upon times, the children still spend the majority of their non-school time, including most nights, at their mother's home. Their mother also supports them in their extracurricular activities and attends parent-teacher conferences. The cases where joint physical custody has been found, involve situations where the children spend substantial time with both parents who also share parenting responsibilities in a more equal way. See O'Connor v. O'Connor, supra, 349 N.J. Super. 381 (finding joint custody where parents shared custodial responsibilities and duties and during a three year period, the father had the child for 134 weekend overnights and 298 weekday overnights, while the mother had the child 105 weekend overnights and 533 weekday overnights); Voit v. Voit, 317 N.J. Super. 103 (Ch. Div. 1998) (finding joint custody where the father had the child from Thursday evening at 6:00 p.m. to Monday morning at 9:00 a.m. and the mother had the child the balance of the time, and where the parents shared equally in the rights and responsibilities of parenting.)

Accordingly, since the mother is the custodial parent and the father is the non-custodial parent, the application is governed by the standard set forth in Baures v. Lewis, supra, 167 N.J. at 122. The mother as the custodial parent must show that she has a good faith reason for the move and that the move is not inimical to the best interests of the child. See Baures v. Lewis, supra, 167 N.J. at 116. When deciding the application, the court must take into account the following factors:

(1) the reasons given for the move; (2) the reasons given for the opposition; (3) the past history of dealings between the parties insofar as it bears on the reasons advanced by both parties for supporting and opposing the move; (4) whether the child will receive educational, health and leisure opportunities at least equal to what is available here; (5) any special needs or talents of the child that require accommodation and whether such accommodation or its equivalent is available in the new location; (6) whether a visitation and communication schedule can be developed that will allow the non-custodial parent to maintain a full and continuous relationship with the child; (7) the likelihood that the custodial parent will continue to foster the child's relationship with the non-custodial parent if the move is allowed; (8) the effect of the move on extended family relationships here and in the new location; (9) if the child is of age, his or her preference; (10) whether the child is entering his or her senior year in high school at which point he or she should generally not be moved until graduation without his or her consent; (11) whether the non-custodial parent has the ability to relocate; (12) any other factor bearing on the child's interest.

[Id. at 116-17.]

As noted above, the custodial parent seeking to relocate the children must establish a good faith reason for the move. Ibid. While this requirement does not impose an "onerous" burden on the custodial parent, id. at 118, nonetheless, "the custodial parent initially must show that there is a real advantage to that parent in the move." Id. at 111 (quoting Cooper v. Cooper, 99 N.J. 42, 56 (1984)). The liberty interests of the custodial parent in making a move "to seek happiness and fulfillment" is accorded "special respect" "because that parent's happiness and fulfillment enure to the child's benefit in the new family unit." Id. at 115. Thus, the reason for the move must be one of sufficient moment to affect the happiness and fulfillment of the custodial parent to the extent that the child will benefit. Here the mother has presented sufficient economic reasons for the move. Since her rehabilitative alimony will be ending shortly, she needs to complete her education in a field where she is likely to find employment. She is having difficulty making ends meet in New Jersey under her current financial arrangements. By moving to Arizona, her living expenses will be reduced, and she will be able to pursue her education goals more quickly and less expensively than if she were to remain in New Jersey. She will also be able to be home for the children after school which is a better situation for them than if she were to work full time and go to school at night. The mother's more favorable economic situation and schedule in Arizona will inure to the benefit of the children.

We are satisfied that the trial judge properly considered the twelve factors in Baures, and his decision to allow the removal is supported by the record and the applicable law.

Affirmed.

20080922

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