May 7, 2010
KIMBERLY DAVIS HOLLOWAY, PLAINTIFF-APPELLANT,
JIMMIE HOLLOWAY, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-1678-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 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.]
The Court stressed that "a mere change, even a reduction, in the non-custodial parent's visitation is not an independent basis on which to deny removal." Id. at 117.
Here, although the trial court referred to Baures and to these principles, we are satisfied that it did not correctly apply them. It did not utilize the analytical framework established by Baures, that is, considering initially whether plaintiff had presented a prima facie case establishing a good faith reason for plaintiff's relocation and whether the move would be detrimental to the child and then proceeding to whether defendant had met his burden of going forward. Although the trial court recited the Baures factors, it did so only in terms of its view of the ultimate merits of plaintiff's decision to move to Georgia.
In reaching its decision, it is apparent to us that the trial court's analysis was heavily affected by two factors: plaintiff's testimony that she had accepted the position in Georgia and, in consequence, was committed to relocating whatever the outcome of the application and the fact that plaintiff had taken the child to Georgia for two weeks in May after the trial court had entered an order that the child was "not [to] be removed from the State of New Jersey without permission."*fn1 The trial court viewed plaintiff's action in this regard as "deceiving the Court and not telling the Court and just going without permission, certainly tells this Court that you have disregard for her orders."
With respect to the latter issue, plaintiff testified that she did not consider a two-week trip to be a "removal" within the sense of the court's order. The trial court did not directly address that contention, but we cannot help but notice that the trial court order in question did not prohibit the child from leaving the State of New Jersey completely but only her "removal." Under the trial court's interpretation, either parent would have been prohibited from taking the child to Philadelphia for a one-day excursion. In addition, if the court or defendant considered that plaintiff had violated that earlier order, the proper remedy would have been an application in aid of litigant's rights, rather than the approach employed here.
Although the trial court did not explicitly address whether plaintiff had established a prima facie case entitling her to relocate to Georgia with the child, we consider it clear that plaintiff was successful in that regard, particularly in light of the Baures court recognizing that the "initial burden of the moving party is not a particularly onerous one." 167 N.J. at 118. Plaintiff was exchanging a freelance position for a full-time position, with an opportunity for advancement. She would be working a more regular schedule. Further, her mother was moving to Georgia with her, and the two would be living together so that her mother would be available to assist with child care responsibilities. One result would be that the child would no longer be required to go to aftercare at the end of the school day.
Once plaintiff established a prima facie case, the burden switched to defendant to prove that the proposed relocation was either not being proposed in good faith or was inimical to the child's best interests. Baures, supra, 167 N.J. at 118. It is clear defendant did not meet his burden. He himself did not testify. He only presented his mother and his sister as witnesses to testify that the move would affect their relationship with the child. Her paternal grandmother only saw the child when she visited her father, and not during every visit. Defendant's sister testified she saw the child approximately five times a year.
The court correctly discounted that testimony but concluded that the relocation was detrimental to the child because it would affect the child's ability to maintain a relationship with defendant. That, however, is not the test. "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." Baures, supra, 167 N.J. at 119. Here, there was absolutely no evidence that a change in visitation would have a negative affect on the child.
We cannot help but note that the parties resided across the street from one another, and yet defendant apparently only saw his daughter every other weekend. While he contended, and the trial court apparently accepted, that plaintiff had interfered with his visitation, the only evidence he produced of that was a voicemail that the girl had left on his phone two years prior to the trial, to the effect that she would not be visiting that weekend because plaintiff objected to the girl sharing a bed with defendant's girlfriend. That one item is insufficient to support a finding that plaintiff interfered with defendant's visitation.
The trial court noted in its oral opinion that plaintiff had not addressed the issue of the cost of visitation between Georgia and New Jersey. Plaintiff, however, clearly testified that she would pay the cost of the child flying back and forth between Georgia and New Jersey.
Finally, we are compelled to note that in our judgment the trial court acted precipitously by immediately declaring defendant the parent of primary residence once it determined that it was going to deny plaintiff's relocation application. We noted at the outset that defendant had not filed any papers seeking that relief. In addition, although the trial court questioned defendant about the ability of his mother and his girlfriend to assist with the attendant child care responsibilities, there was no testimony from either of them that they were able or willing to do so. According to the record, defendant's girlfriend has a daughter who resides with them. There was no testimony on the nature of the relationship that existed between the two girls. A more prudent approach would have been to permit the parties to consider the topic and return to the court with further evidence on the question.
The order under review is reversed.