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Fry v. Fry

September 22, 2008


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

Per curiam.



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 ...

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