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Holloway v. Holloway

May 7, 2010

KIMBERLY DAVIS HOLLOWAY, PLAINTIFF-APPELLANT,
v.
JIMMIE HOLLOWAY, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-1678-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 20, 2010

Before Judges Wefing and Messano.

Plaintiff appeals from a trial court order denying her application to relocate to the State of Georgia with the parties' minor daughter who was almost nine years old at the time of plaintiff's application. Defendant has not participated in this appeal. After reviewing the record in light of the contentions advanced on appeal, we reverse.

The parties were married in September 2003 and divorced pursuant to a judgment of divorce entered in September 2008. The judgment of divorce provided for joint custody of the couple's daughter, with plaintiff being the parent of primary residence, and defendant having "reasonable and liberal visitation by agreement between the parties."

Plaintiff works in the hair care business. She had two positions in New Jersey, a freelance position with Farouk Hair Systems and a week-end position in a beauty salon owned by her mother. She was offered a full-time position with Farouk Hair Systems which required her to move from New Jersey to Georgia. She testified she would be receiving more money from Farouk as a result of the move, and she felt it offered her more stability than did her current freelance position with the company. Defendant opposed the relocation, contending it would interfere with his relationship with his daughter. Following a hearing at which both parties appeared pro se, the trial court denied the application and, although defendant had not filed any cross-motion, ordered that he would be parent of primary residence, terminated his child support obligation, and ordered plaintiff to pay child support in accordance with the child support guidelines. This appeal followed.

Relocation applications are among the most troublesome matters with which a court must deal. "There is rarely an easy answer or even an entirely satisfactory one when a non-custodial parent objects." Baures v. Lewis, 167 N.J. 91, 97 (2001). In Baures, Justice Long set forth the framework within which such applications should be analyzed.

In terms of the burden of going forward, the party seeking to move, who has had an opportunity to contemplate the issues, should initially produce evidence to establish prima facie that (1) there is a good faith reason for the move and (2) that the move will not be inimical to the child's interests. Included within that prima facie case should be a visitation proposal. By prima facie is meant evidence that, if unrebutted, would sustain a judgment in the proponent's favor.

The initial burden of the moving party is not a particularly onerous one. It will be met, for example, by a custodial parent who shows that he is seeking to move closer to a large extended family that can help him raise his child; that the child will have educational, health and leisure opportunities at least equal to that which is available here, and that he has thought out a visitation schedule that will allow the child to maintain his or her relationship with the non-custodial parent. If, for some reason, the custodial parent fails to produce evidence on the issues to which we have referred, the non-custodial parent will have no duty to go forward and a judgment denying removal should be entered.

Once that prima facie case has been adduced, however, the burden of going forward devolves upon the non-custodial parent who must produce evidence opposing the move as either not in good faith or inimical to the child's interest. She might, for example, challenge the move as pretextual and show that the custodial parent's past actions reveal a desire to stymie her relationship with the child, thus bearing on good faith. She might also offer proof that the move will take the child away from a large extended family that is a mainstay in the child's life. Alternatively, she could adduce evidence that educational, avocational or health care [sic] available in the new location are inadequate for the child's particular needs. She might also proffer evidence that because of her work schedule, neither relocation nor reasonable visitation is possible, and that those circumstances will cause the child to suffer. Where visitation is the issue, in order to defeat the custodial parent's proofs, the burden is on the non-custodial parent to produce evidence, not just that the visitation will change, but that the change will negatively affect the child. [Id. at 118-19.]

Justice Long also set forth the factors a court should consider when weighing the application.

[T]he court should look to the following factors relevant to the plaintiff's burden of proving good faith and that the move will not be inimical to the child's interest:

(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 ...


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