Moving is always hard on children, and is even harder in a separated family. During my tenure as a New Jersey child custody lawyer I have seen firsthand, how stressful it can be when a non-custodial parent tries to prevent a custodial parent from moving out of the state of New Jersey. Fortunately for my clients the attorneys at my law firm understand that New Jersey Family Part courts recognize that a custodial parent who bears the burden and responsibility for the child is entitled to the same freedom to seek a better life for the child as enjoyed by the noncustodial parent. When one parent serves as a primary caretaker and the other parent serves as a secondary caretaker, then the custodial parent’s right to relocate is governed by the two-part Baures test. This test requires that a court allow relocation when the preponderance of the evidence shows: (1) that the custodial parent has a good faith reason to move; and (2) the move will not be detrimental to the child’s best interest. This standard illustrates the respect New Jersey courts give to the custodial parent’s right to seek happiness and fulfillment, guarantees regular communication and contact between the non-custodial parent and the child, and serves the best interests of the child.
On May 15, 2014, the Superior Court of New Jersey, Family Part, Camden County entered an order which allowed mother, Katherine Mulholland, to move to Watervliet, New York with her and her ex-husband, Micah Khan’s, child. This order followed a trial where Judge Kathleen Delany analyzed the factors enumerated in the 2001 New Jersey Supreme Court case of Baures v. Lewis, and found that Katherine had a good faith reason to move and that the move would not be detrimental to the child or the child’s best interests. In Mulholland v. Khan, Micah appealed from the May 15, 2014 order. The New Jersey Appellate Division reviewed the merits of the appeal and affirmed the trial court’s order primarily for the reasons listed in Judge Delaney’s opinion.
Katherine Mulholland and Micah Khan had a daughter together in May 2004, but never married. Initially, Micah was only allowed supervised visits with his daughter, and was sporadically incarcerated for the first few years of her life. After that, the parents decided to share legal custody of their daughter. Katherine lived with the child in New Jersey, and was designated as the parent of primary residence. She served as the child’s main caregiver, dropped her off and picked her up from school, took her to doctor’s appointments, and was generally responsible for the child’s everyday needs. Micah had parenting time with the child on every other weekend, and also one evening per week from 4:00 to 8:00 p.m.
In January 2008, Katherine met her current husband, Sean Mulholland. Sean met Katherine’s daughter in June 2008, and since then they have all enjoyed a close and loving relationship. They all moved in together into an apartment in Merchantville, New Jersey in 2010, and Katherine and Sean later married in July 2013.
Sean was unemployed for a while so he retained the services of a headhunter because he was unable to find a new job in New Jersey. Ultimately, Sean was offered a sales consultant position with a company located in the Albany, New York area. He would be earning approximately $ 93,000 at this new job, triple the amount he previously earned as a copier salesman. Consequently, Katherine filed a pro se motion to relocate with her daughter to the Albany area. In the motion she explained that Sean had been supporting her and her daughter over the past several years, and his new job would allow the family to move from their small apartment to a nicer neighborhood with a better school system. Katherine would no longer need to work fulltime, and as a result she would be able to spend more time with her daughter.
Micah opposed the motion, and argued that it was made in bad faith. He argued that if the move was allowed, it would not be in the child’s best interest because it would uproot her from her numerous extended family members, friends, and classmates. Micah further argued that it would be impractical and unaffordable for him to drive from the Camden area to upstate New York to visit his daughter.
The Family Part court reviewed the Baures factors and found that Katherine had sufficiently proven a “good reason” for the move. Unfortunately, Katherine had not included a written parenting plan with her moving papers, and so she failed to establish a prima facie case for relocation. As a result, the burden of proof did not shift to Micah to produce evidence opposing the motion. As a result, the Family Part denied the motion on June 14, 2013. Katherine appealed that order and in an unpublished opinion, the New Jersey Appellate Division held in her favor. The appellate panel was satisfied that her submitted evidence was sufficient to meet her initial burden of establishing a prima facie showing that she had a good reason to move, and that the move would not be detrimental the child’s best interests. The appellate panel held that under the Baures factors, the burden of going forward should have then shifted to Micah to prove that Katherine’s motions was not made in good faith, or that the relocation would not be in the child’s best interest. The New Jersey Appellate Division reversed the trial court’s order and ordered that a new trial be held, with instructions that the trial court should consider all relevant evidence again.
At the re-trial, Judge Delaney held a four-day plenary hearing. At trial, Sean testified that he views Katherine’s child as his own. He also described the new apartment he was renting in Watervliet, New York, and explained that it had a yard and was located in a upscale complex in a safe neighborhood with many other children to play with. Katherine also testified and described her daughter’s current school as “low-funded,” and stated that if she could move to New York she would be able to enroll her daughter in Blue Creek, a better school with textbooks and a gifted student program. She also made sure to mention that she supported her daughter’s relationship with Micah, and his extended family, and would make sure the child maintained contact with them if the court allowed her to move.
Judge Delaney entered an order which granted Katherine’s request to relocate on May 15, 2015. The judge carefully examined the credibility of each witness that testified. Sean, Sean’s brother, and the headhunter were found to be credible witnesses. Micah’s family members, such as his mother, father, and sister-in-law, were also found to be credible witnesses, but Micah himself was not. Judge Delaney noted that Micah’s demeanor changed during his testimony, and he became combative, gave inconsistent testimony, and did not and would not answer specific questions. Furthermore, even though he downplayed his own significant child support debt, he simply refused to accept the fact that Sean had continued to provide financial support for the child, and shared in numerous father-like moments with her.
Judge Delaney also conducted a detailed analysis of the Baures factors. She concluded that Sean’s new job opportunity in New York, and Katherine’s desire to be with him was a good faith reason to relocate. The judge also found that Katherine met her burden of showing that the move would not be against the best interest of the child, and Micah failed to prove otherwise. Moreover, the new parenting schedule would allow Micah to maintain a consistent presence in his daughter’s life and their bond would not be negatively affected by the move. Micah appealed the decision. He argued on appeal that the judge failed to make adequate findings of fact and that her decision was in opposition to the evidence from the plenary hearing.
The New Jersey Appellate Division stated that a motion for relocation requires consideration of numerous principles. Even though at one time, relocation by the custodial parent was looked down upon by New Jersey courts, now Family Part courts recognize that a custodial parent who bears the burden and responsibility for the child is entitled to the same freedom to seek a better life for the child as enjoyed by the noncustodial parent. The New Jersey Appellate Division stated that when one parent serves as a primary caretaker and the other parent serves as a secondary caretaker, then the custodial parent’s right to relocate is governed by the two-part Baures test. This test requires that a court allow relocation when the preponderance of the evidence shows: (1) that the custodial parent has a good faith reason to move; and (2) the move will not be detrimental to the child’s best interest. This standard illustrates the respect New Jersey courts give to the custodial parent’s right to seek happiness and fulfillment, guarantees regular communication and contact between the non-custodial parent and the child, and serves the best interests of the child.
When the Baures analysis is appropriate, a trial judge must determine if the moving party has made a prima facie case by considering: the reasons for the move; the reasons for opposition; the past history between the parents; whether the child will receive equal educational, health and leisure opportunities; any special needs the child may have that require special accommodation; the existence of a visitation schedule that allows the noncustodial parent to maintain a relationship with the child; the probability that the custodial parent will foster the child’s relationship with the non-custodial parent; the effect on extended family relationships; the child’s preference; whether the noncustodial parent has the ability to move; and any other factors related to the child’s best interest.
According to the New Jersey Appellate Division, in this case, Judge Delaney carefully analyzed the Baures factors and correctly found that Katherine established a prima facie case that the move was in good faith and would not be a detriment to the child’s best interests. Therefore, the New Jersey Appellate Division confirmed the order of the Family Part.
If you are facing a child custody situation involving relocation of your kids, my office is here to help you.