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Paul Morgan v. Kristin Morgan (N/K/A Leary

February 8, 2011


On certification to the Superior Court, Appellate Division.

The opinion of the court was delivered by: Justice Long


(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).

Paul Morgan v. Kristin Morgan (n/k/a Leary)


Argued November 9, 2010

Decided February 8, 2011

LONG, J., writing for a unanimous Court.

The Court reviews a decision denying a divorced mother's request to move with her children to another state after the children's father objected to the relocation.

Defendant Paul Morgan and plaintiff Kristin Leary were married in 1992. They had two daughters, one in 1998 and one in 2001. A final judgment of divorce in 2005 incorporated the couple's Property Settlement Agreement (PSA), which provided for joint legal custody of the children and which indicated that Leary would be the party of primary residence. Under the PSA, Morgan would have the girls alternate weekends, every Tuesday evening, every Thursday night until Friday morning, and for two weeks of vacation.

In November 2005, Morgan filed a motion seeking to re-determine custody based on changed circumstances. Leary filed a cross-motion seeking to relocate with the children to Massachusetts, where her fiancee and her extended family were located. In support of his custody motion, Morgan asserted that Leary was emotionally volatile and that the trips with the children to Massachusetts were destabilizing the girls' lives. He also claimed it was a fundamental underpinning of the PSA that Leary remain in New Jersey with the girls. Leary denied that the PSA was based on her remaining in New Jersey and argued that her entire family lived in Massachusetts and that her marriage to her fiancee would allow her to be a stay-at-home mom. The trial judge denied Morgan's custody motion after finding no change in circumstances, rejected his claim that he and Leary had a de facto shared custody arrangement, and declared Leary to be the primary residential parent, warranting application of the principles in Baures v. Lewis, 167 N.J. 91 (2001). In preparation for a hearing, the judge appointed a forensic psychologist, Dr. Rosenberg, to perform a relocation evaluation.

Morgan filed a motion to apply the "best interests" standard at the relocation hearing, arguing again that he and Leary had de facto shared custody. The trial court denied the motion. At the relocation hearing in 2007, several witnesses testified, including Dr. Rosenberg, who recommended approval of the move. He concluded, after administering psychologist tests, that Leary did not have any significant emotional problems and that she was sincere in her desire to be closer to her family and to spend more time with the girls following her new marriage. A clinical psychologist retained by Morgan asserted that the move should be denied. She agreed that Leary did not suffer psychopathology, but concluded that she was emotionally unstable. In support, she relied on the reports of other non-testifying experts. On June 13, 2007, the judge denied the relocation request. He agreed with the opinion of Morgan's psychologist, as supported by non-testifying experts, that Leary was emotionally volatile. He also found that Leary's reasons for the move were "not valid," Morgan's relationship could not be fully sustained though a new visitation scheme, and the move would be inimical to the girls' interests.

On April 29, 2010, the Appellate Division reversed and permitted Leary to relocate, finding that she was the primary caretaker, she had established good faith reasons for the move, and there was insufficient evidence that the move would harm the children. The panel determined that the trial court had erred by, among other things, applying a "validity" test rather than Baures, relying on inadmissible evidence to prove that Leary was emotionally unstable, and concluding that only a schedule identical to the existing one could sustain Morgan's bond with the girls. The panel remanded for the purpose of fine-tuning a new visitation schedule. The Supreme Court granted Morgan's petition for certification. 203 N.J. 437 (2010).

HELD: The Appellate Division correctly found that defendant Paul Morgan did not establish de facto shared custody and that the trial court's decision prohibiting plaintiff Kristin Morgan from relocating required reversal. The Appellate Division's remand order, however, is modified to permit the trial court to take into account the changes in circumstances that have occurred since the evidence was heard by the trial judge four years ago.

1. N.J.S.A. 9:2-2 provides that when the Superior Court has jurisdiction over the children of divorced or separated couples, the children cannot be removed from the state without the consent of both parents unless the court otherwise orders. The statute's intent is to preserve the rights of the non-custodial parent and children to maintain their familial relationship. Case law has evolved from disfavoring relocation to acknowledging the inequity of holding a custodial parent hostage while allowing a non-custodial parent complete freedom of movement. In Baures, the Court established a two-part test for custodial parent motions for relocation: the movant must prove a good faith reason for the move and that the child will not suffer from it. The Court in Baures also listed twelve factors that are relevant in deciding whether the two-part test was met, including the reasons for the move and for opposition to the move; the health, education, and other needs of the child and whether those needs can be equally met in the new location; whether visitation and communication schedules can be developed to permit a full and continuous relationship with the non-custodial parent; the effect of the move on extended family relationships in both locations; the likelihood that the custodial parent will continue to foster the non-custodial parent's relationship; and whether the non-custodial parent has the ability to relocate. The Court in Baures also made clear that a mere change in parenting time would not be sufficient to bar a move. (Pp. 11-17)

2. As an initial step, the court must examine the parenting arrangement. If the matter is actually an application for a change of custody--for example, if the children rotate between houses with each parent assuming full parental responsibility half of the time--the relocation decision is based on the child's best interest. In contrast, if the non-custodial parent sees the children once or twice a week, the application is a removal motion triggering the Baures test. Once the parties' status is determined and the case is denominated as one involving removal, the burden of production rests on the movant to establish a prima facie showing on the good faith and harm to the child prongs, which typically requires a "visitation proposal." If the moving party meets that burden, the non-custodial parent must produce evidence opposing the move as either not in good faith or inimical to the child's interest. Once that evidence is produced, the custodial parent may adduce further evidence or may rest. Either way, the ultimate burden of proving both good faith and that the children will not be harmed remains with the party seeking to relocate. Here, the matter was a removal action because Morgan did not make out a case of changed circumstances and Leary and Morgan did not have a de facto shared custody arrangement. Morgan's claim that he saw the girls more than the PSA provided failed to establish shared physical custody--a status that considers whether both parents share tasks such as meals, bathing, purchasing and caring for clothes, disciplining, and arranging social interactions, daycare, baby-sitting, and education. (Pp. 17-22)

3. The Court affirms the Appellate Division's conclusion that the trial judge erred by failing to apply the good faith Baures standard, which was satisfied in this case, and by concluding that Leary's "emotional instability" was supported by admissible evidence in the record. Although the Appellate Division remanded the matter only for a new visitation schedule, the Court holds that a full remand is in order because four years have elapsed since the evidence was adduced before the trial court, Leary's engagement is off and her fiancee will not be supporting her to permit her to become a stay-at-home mother, the girls are now twelve and nine and the older child has the legal right to express a preference regarding the move, and Morgan has remarried and has a new child. At the remand hearing, all of the Baures factors that are relevant should be addressed, and updated psychologist evaluations should be ordered if appropriate. (Pp. 22-25)

The judgment of the Appellate Division is AFFIRMED and MODIFIED.

JUSTICES LaVECCHIA, ALBIN, RIVERA-SOTO, HOENS, and JUDGE STERN, temporarily assigned, join in JUSTICE LONG's opinion. CHIEF JUSTICE RABNER did not participate.

Argued November 9, 2010

JUSTICE LONG delivered the opinion of the Court.

After a divorce, applications by a custodial parent*fn1 to relocate with the children are fairly common. For all their ubiquity, however, such requests present us with difficult and often heart-wrenching decisions.

Inevitably, upon objection by a non-custodial parent, there is a clash between the custodial parent's interest in self-determination and the non-custodial parent's interest in the companionship of the child. There is rarely an easy answer or even an entirely satisfactory one when a non-custodial parent objects. If the removal is denied, the custodial parent may be embittered by the assault on his or her autonomy. If it is granted, the non-custodial parent may live with the abiding belief that his or her connection to the child has been lost forever. [Baures v. Lewis, 167 N.J. 91, 97 (2001).]

Our evolving case law has attempted to balance those competing interests. See, e.g., Holder v. Polanski, 111 N.J. 344 (1988); Cooper v. Cooper, 99 N.J. 42 (1984). Most recently, in Baures, we clarified the two-pronged standard for resolving such a matter: a custodial parent will be permitted to move if (1) that party has a good faith reason to do so, and (2) the children will not suffer from the move. Baures, supra, 167 N.J. at 118. To aid in that analysis, we set forth a metric consisting of twelve relevant considerations. Id. at 116-17.

Here, a mother sought to move with her children to another state where her fiancee and her extended family were located. The father objected. In 2006, the trial judge blocked the move, declaring that the mother did not have a valid reason to go and that the children would be harmed thereby.

In 2007, both parties appealed and in 2010 the Appellate Division reversed the denial of relocation because the trial court's conclusions were not supported by the record, permitted relocation, and remanded solely for proceedings to expedite the move. We granted the father's petition for certification and now affirm and modify. We agree with the appellate panel that the trial judge's analysis was seriously flawed and warranted reversal. However, the scope of the Appellate Division's remand order was too narrow. Enormous changes in the lives of the parties and their children have occurred over the four years since the trial court's decision. Thus, we hold the remand requires an assessment of the Baures factors in light of present-day realities.


Paul Morgan and Kristin Leary were married on April 11, 1992. Two daughters were born of the marriage -- Anna on November 22, 1998, and Greta on June 29, 2001. Morgan and Leary divorced on August 16, 2005. The final judgment of divorce incorporated a March 2005 Property Settlement Agreement (PSA), which provided for joint legal custody of the children, indicated that Leary would be the "parent of primary residence,"*fn2 and detailed a parenting-time schedule. The schedule provided that Morgan would have the girls on alternate weekends beginning Friday evening and ending Monday evening, every Thursday night until Friday morning, and every Tuesday evening for dinner. Holidays would be alternated and each parent would have the children for one week of vacation during the school year and one during the summer.

On November 23, 2005, in anticipation of an application by Leary to move with the children to Massachusetts, Morgan filed a motion seeking a re-determination of custody based on "a substantial change in circumstances." He contended that he should be designated the parent of primary residence because he saw the girls more than the PSA provided and was very involved in their school and recreational activities. He also requested a custody evaluation and an order limiting Leary's trips with the girls to Massachusetts where James Mambro, her new boyfriend, was located. The motion was based on what Morgan characterized as Leary's volatile personality; the children's chaotic lives, as evidenced by their excessive visits to Massachusetts; and Leary's expressed desire to move to Massachusetts, which Morgan claimed violated one of the fundamental underpinnings of the PSA: that Leary would remain in New Jersey with the girls.

On January 11, 2006, Leary opposed Morgan's motion and filed a cross-motion seeking permission to move with their daughters to Massachusetts or, alternatively, a plenary hearing. In support of her request to relocate, Leary pointed to the fact that Massachusetts is her home state; her entire family resides there; she was by then engaged to Mambro, a Massachusetts resident; that her marriage would enable her to forego employment and become a "stay-at-home" mother; and that the PSA was not based on her promise to remain in New Jersey. Morgan filed a reply certification disputing Leary's assertions and underscoring her emotional volatility which he claimed would render the proposed relocation away from him harmful to their children.

The trial judge denied Morgan's motion to re-determine custody because there was no change in circumstances from the time of the divorce. The judge also rejected Morgan's contention that he and Leary actually had a de facto shared custody arrangement, notwithstanding the PSA. In ruling, the judge declared Leary to be the parent of primary residence, warranting application of the relocation principles of Baures; denied Leary permission to move the children to Massachusetts, but granted her request for a plenary hearing; and appointed a forensic psychologist, ...

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