In the recent decision of a New Jersey family court, the standards for out-of-state relocation with a minor child were examined and the court addressed what shared physical custody really means for purposes of determining removal applications.

In Teng v. Molina, an application made by a minor child’s mother to relocate to Florida was met with opposition from the child’s father, a resident of New Jersey. The parties married in New Jersey in 2009 and had one daughter together, born shortly thereafter. Though the parties met and had lived as a family in New Jersey, the child’s mother had emigrated from Cuba with her family in 1999 and initially settled in Florida. The mother moved to New Jersey five years later to search for employment in the pharmaceutical industry. 

The parents divorced in February 2015 and executed a marital settlement agreement (MSA) addressing issues of custody and parenting time. The MSA provided that they share joint legal custody and that the mother shall be designated as Parent of Primary Residence (PPR). The father was designated Parent of Alternate Residence (PAR). The agreement further provided that, upon such time as the mother vacated the marital home, the father shall be entitled to parenting time every other weekend and each Monday and Wednesday evening. The agreement did not address relocation or out-of-state removal of the child.

Despite the terms of the MSA, the mother did not vacate the marital home until July 2016. Prior to that time, the parties continued to live as a family in the marital home and share in parenting responsibilities as they had prior to the divorce. It was undisputed that the father had a very close relationship with his daughter and that he was actively involved in her caregiving as much as the mother, up until relocation became an issue between the parties.

When the mother vacated the marital home, she moved into a one-bedroom apartment with the child. At that time, the father continued to have daily contact with his daughter. Because the father worked from home, he was able to pick up the child from her daily activities and otherwise take care of her. In August 2016, the mother traveled to Cuba and Florida with the daughter for over three weeks, with the father’s permission. Following that visit, the mother decided that she wished to move back to Florida with the child. The parties previously had a flexible and cooperative relationship regarding parenting time, but once the mother’s wishes to relocate were announced, she invoked the parenting time provisions of the MSA and only permitted the father to see the child on alternating weekends and twice a week in the evenings. 

At the removal hearing, both parties testified and presented experts in child psychology regarding the effect of the potential move on their daughter. The mother testified that she has worked in the pharmaceutical industry throughout the marriage and had lost her job due to lay-offs on several occasions. She testified that finding local work in the industry was becoming increasingly difficult and that she wished to relocate for better employment opportunities and to be closer to family, who still lived in Florida. The mother further testified that she had a job lined up in Florida which would pay her $17,000 more than her last job, though she was unemployed at the time of the application. The mother’s expert testified that relocation would allow both mother and child to enhance their lifestyle (i.e., due to the mother’s increased earnings) and foster a relationship with the mother’s family, without compromising the child’s relationship with her father. 

The father’s expert, however, testified that the co-parenting relationship which existed prior to the removal application allowed the child to develop into a healthy and emotionally good-spirited girl. He further testified that moving out of state would disturb the child’s relationship with the father and have possible negative effects on her development. Moreover, removal would involve a major distance, a total change in support system and social network and, with the mother working and commuting up to ten hours a day, novel caretakers supervising the child. The father also testified, in part, to counter the mother’s suggestion that he could move to Florida since his employment afforded the flexibility to work from home. The father testified that he had two children from a prior relationship, both in college in the New York metropolitan area, who had frequent contact with the child. The father testified that he should not be forced to choose between his children, and that moving the child to Florida would affect her relationship with her two half-brothers. 

In adjudicating the removal application, the court acknowledged that there is a different standard to determine a removal application in circumstances where physical custody is jointly shared versus a situation in which there “is some lesser” sharing of physical custody and parental responsibility. When physical custody is jointly shared, the court opined, one parent’s moves implicates the custody arrangement and the parent who wants to relocate must show changed circumstances sufficient to warrant obtaining primary custody.  However, where there is some lesser sharing of physical custody, the application for removal is granted if made in good faith and is not inimical to the child’s interest. Accordingly, in the former case, the child’s best interests govern, whereas in the latter, the parents’ interests become relevant as well.

The court further held that the labels used in the divorce decree or MSA are not determinative, but that a fact-sensitive inquiry must be conducted to determine whether physical custody is truly shared. Interestingly, in this case, it appears as though physical custody was shared to some lesser degree on paper, but in practice, was truly jointly shared. Nonetheless, the court applied the latter, less stringent standard to determine the removal application. The court assessed whether the mother had a good faith reason for the move, and then relied on the testimony of the parties and experts to determine whether the move was not inimical to the child’s best interests. Perhaps labels used in the MSA really do carry greater weight than the court initially suggested.

The seminal case on removal, Baures v. Lewis, sets forth twelve factors to assess in a removal case: 

• the reason for the move;
• the past history of dealings between the parties;
• whether the child will receive educational, health and leisure opportunities at least equal to those available in the current location;
• any special needs of the child;
• whether a visitation or communication schedule can be developed with the non-custodial parent;
• the likelihood of the custodial parent fostering that relationship;
• effect of the move on extended family relationships;
• if the child is of an age to make a reasoned decision;
• whether the child is entering senior year of high school;
• whether the non-custodial parent has the ability to relocate;
• any other factor bearing on the child’s best interest.

Analyzing these factors, the court ultimately found that relocation could not be achieved without significant detriment to the child and denied the application. The court seemed most concerned with the father’s previously significant involvement in parenting and the mother’s failure to present a plan which would enable the father to maintain that relationship. For example, her proffered parenting plan contemplated frequent Skype contact with the father, but did not set forth how the parties would travel back and forth to allow the father to exercise in-person parenting time or who would pay those travel expenses. 

Given the father’s significant involvement with the child’s caregiving up to the point of the removal application, I believe the outcome of this case is correct. However, this decision raises questions about the appropriate standard to analyze such cases under and whether the characterizations of custody in an MSA truly are determinative in such instances. For example, the MSA arguably afforded the father lesser physical custody rights than the mother, though in practice they shared physical custody following the divorce. Nonetheless, the court did not address whether the mother had showed a change in circumstances sufficient to warrant a change in custody. Perhaps this is so because the mother was unable to meet even the less stringent Baures standard. Nonetheless, parties negotiating custody in an MSA should pay close attention to the labels and designations set forth in the agreement and whether they will be carried out in practice. Undoubtedly, the terms of an MSA will play a significant role in any future applications as they relate to custody or removal.

​ Katherine A. Nunziata is an associate in the Family Law Practice Group of Riker Danzig Scherer Hyland & Perretti LLP and a contributor to the Riker Danzig Family Law Blog. Katherine’s interest in family law stems from a desire to help others while navigating a difficult process, and she brings a high level of compassion and zeal to her practice. Katherine is a resident in the Morristown, New Jersey office and can be reached at 973-451-8445 or knunziata@riker.com.