August 28, 2012
GILLIAN PARSONS, PLAINTIFF-APPELLANT,
CHRISTOPHER FORMAN, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-0864-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 22, 2012
Before Judges Simonelli and Waugh.
In this post-divorce matter, plaintiff Gillian Parsons appeals from the September 27, 2011 Family Part order, which denied her motion seeking permission to relocate with the parties' son, H.F.,*fn1 to Colorado. We reverse.
We begin by reviewing the applicable caselaw. A custodial parent is not permitted to relocate outside of New Jersey with a child absent the consent of the non-custodial parent or a court order granting permission for "cause shown." N.J.S.A. 9:2-2. However, "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." Morgan v. Morgan, 205 N.J. 50, 54 (2011) (citing Baures v. Lewis, 167 N.J. 91, 118 (2001)). This standard "accords particular respect to the custodial parent's right to seek happiness and fulfillment, guarantees regular communication and contact between the non-custodial parent and the child of a nature and quality to sustain that relationship, and incorporates a variation on a best interests analysis by requiring proof that the child will not suffer from the move." MacKinnon v. MacKinnon, 191 N.J. 240, 257 (2007) (internal quotation and alterations omitted).
The initial burden of proving a good faith reason to relocate and a lack of harm to the child "is not a particularly onerous one." Baures, supra, 167 N.J. at 118. In determining whether a parent has met his or her burden, the court will consider twelve 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.]
Not all of these factors will be relevant in a given case, and some factors may be more significant than others. Id. at 117. Once a custodial parent makes a prima facie showing of a good faith reason to relocate and a lack of harm to the child, the burden shifts to the non-custodial parent to produce evidence showing that the relocation was either not in good faith or that the child would actually be harmed by the move. Id. at 119.
The evidence in this case revealed the following.*fn2 The parties have joint legal custody of H.F., plaintiff has primary residential custody, and defendant has parenting time on alternating weekends, one mid-week visit, alternating holidays, three weeks during the summer, and, as agreed between the parties, during winter/Christmas and spring/Easter school breaks. While defendant did not always have parenting time as frequently as he would have liked, he always saw his son during weekend parenting time, and plaintiff had been accommodating in allowing the child to spend more time with him during the Christmas and Easter holidays.
In May 2011, plaintiff became engaged to a man who lives in Colorado, and they planned to live there after their marriage in May 2012. In addition, plaintiff received a full-time job offer in Colorado. On May 17, 2011, she filed a motion, seeking permission to relocate with H.F. to Colorado, and a revision of defendant's parenting time schedule. She proposed an alternate parenting-time plan where defendant would have parenting time in New Jersey for two weeks during Easter, two weeks during Christmas, and six weeks during the summer, and could freely visit H.F. in Colorado. She also proposed that defendant and H.F. could Skype daily and continue their telephone communications. Defendant rejected the proposed plan as "unworkable" but offered no alternative plan.
In considering the Baures factors, the judge found that plaintiff proved she had a good faith reason to relocate*fn3 and the evidence satisfied the applicable Baures factors; however, the judge concluded that her proposed alternate parenting-time schedule was unworkable, and relocation would negatively impact H.F.'s time with his father. The judge reasoned, "I don't want [H.F.] to lose the relationship he has with his father, which I think would be severely negatively affected by this move just because he won't spend the kind of time that he's used to with his father." The judge thus denied the motion on that basis. This was error.
Standing alone, the effect of the relocation on defendant's parenting time was insufficient to justify denial of plaintiff's motion to relocate. Baures, supra, 167 N.J. at 117. "[A] mere change, even a reduction, in the non-custodial parent's visitation is not an independent basis on which to deny removal." Ibid. The non-custodial parent must show that changed parenting time is detrimental to the child or that "for particular reasons, and in light of the unique facts surrounding his or her relationship with the child," the child would not be able to adapt to the relocation. Morgan, supra, 205 N.J. at 66.
In addition, "the advantages of the move should not be sacrificed solely to maintain the 'same' visitation schedule where a reasonable alternative visitation scheme is available." Id. at 64 (citing Cooper v. Cooper, 99 N.J. 42, 57 (1984)). "[T]he non-custodial parent is not free to reject every [visitation] scheme offered by the custodial parent without advancing other suggestions[,]" and the court must consider "[i]nnovative technology . . . along with traditional visitation initiatives" in determining whether the custodial parent should be allowed to relocate. Baures, supra, 167 N.J. at 117-18.
Here, except to assail the relocation and proposed alternate parenting-time schedule, defendant presented no alternative parenting-time schedule, and no evidence that relocation and a change in his parenting-time schedule would be inimical to H.F.'s best interests. Accordingly, we reverse the denial of plaintiff's motion.