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BURDEN OF PROOF IN REMOVAL CASES: WHO HAS IT - WHAT IS IT?

By Honorable Herbert S. Glickman
& Bari Zell Weinberger

Prior to the recent decision in Baures v. Lewis,[1] there was "confusion among the bench, Bar, and litigants over the legal standards that should apply in addressing a removal application, and particularly over what role visitation plays in the calculus."[2] A significant part of the confusion has focused on what each of the parties has to establish in order to prevail, i.e., to obtain the approval to move to another state with a child or to defeat the application. This article will address the evolution of the burden of proof in a removal case - what it was, what it is, and which party has it.

Justice Long makes it clear in Baures that her analysis of prior relocation cases and the ultimate decision in Baures, were to be distinguished from, and inapplicable to, de facto or dejure cases of shared physical custody.

In those [shared custody] circumstances, the removal application effectively constitutes a motion for a change in custody and will be governed initially by a changed circumstances inquiry and ultimately by a simple best interests analysis (citing Chen v. Heller, 334 N.J. Super. 361, 381-382 (App. Div. 2000)). Obviously then, the preliminary question in any case in which a parent seeks to relocate with a child is whether it is a removal case or whether by virtue of the arrangement between the parties, it is actually a motion for a change in custody.[3]

In shared custody arrangements, where one party seeks to remove a child from the state, the burden is on the moving party to show that there exists "a substantial change in circumstances from the time the current custody arrangement was established" and that the best interests of the child would be better served by such a transfer in custody.[4] The removal analysis would be inapplicable therefore, as the motion would be deemed an application for a change in custody, where the best interest of the child is the primary consideration.[5] In this scenario, no burden would be placed on the nonmoving party to prove that the visitation proposal is impossible or otherwise burdensome to the extent of affecting the parent-child relationship given the shared parenting arrangement.[6] Since there is "no inequality between the parents' contributions to the child's best interest", removal criteria would not be relevant to shared custody cases.[7]

It is important, therefore, in any removal application that a preliminary determination be made as to whether it is indeed a removal case as defined in Baures (where one parent is the child's primary caretaker), or whether it is actually an application for a change in custody as discussed in Chen, (where there is a shared parenting arrangement). The reality of how a child's time is actually divided between parents is critical to this determination, and the time that each parent spends with the child must be analyzed within the context of each parent's true custodial related functions and responsibilities for the child insofar as such duties would normally exist with the primary parent.[8]

The genesis of any relocation case is N.J.S.A. 9:2-2, which prohibits the removal of minor children who have lived in New Jersey for five years "without the consent of both parents, unless the court, upon cause shown, shall otherwise order." The underlying purpose of the statute is to "preserve the rights of the non-custodial parent", and to develop the familial relationship between that parent and the child.[9]

In Cooper v. Cooper, the Supreme Court held that the "statute requires the custodial parent to show cause why the move should be permitted."[10] Cooper also recognized, for the first time, a principle that has become the rationale for all relocation cases decided within the past 20 years: "[t]he realities of the situation after divorce compel the realization that the child's quality of life and style of life are provided by the custodial parent."[11] Justice Long, in Baures, analyzed cases from other states which embodied "the growing trend in the law easing restrictions on the custodial parent's right to relocate with the children and recognizing the identity of interest of the custodial parent and child."[12] The Supreme Court in Cooper established the methodology to be utilized in a relocation case:

[T]he custodial parent initially must show that there is a real advantage to that parent in the move and that the move is not inimical to the best interests of the children.... It is only after the custodial parent establishes these threshold requirements that the court should consider, based on evidence presented by both parties, visitation and other factors to determine whether the custodial parent has sufficient cause to permit removal under the statute....[13]

It should be noted that the real advantage need not be a substantial advantage, but rather a sincere and genuine desire to move.[14] The trial court would be charged with the responsibility of considering "(1) the prospective advantages of the move; (2) the integrity of the motives of the parents; and (3) whether... a realistic and reasonable visitation schedule can be reached if the move was allowed."[15]

The Court in Cooper imposed a significant burden on the non-custodial parent:

Since the noncustodial parent has the necessary information to demonstrate that an alternative visitation schedule is not feasible because of distance, time, or financial restraints, we place the burden on that parent to come forward with evidence that a proposed alternative visitation schedule would be impossible or so burdensome as to affect unreasonably and adversely his or her right to preserve his or her relationship with the child.[16]

This burden on the non-custodial parent is great, as more than just inconvenience to an existing visitation schedule must be shown.[17] It is not within the scope of this article to discuss the quantum of proof required to establish that the child will not suffer from removal.

Four years after Cooper was decided, the Supreme Court in Holder v. Polanski[18] eliminated the requirement created in Cooper, that the custodial parent had to establish a real advantage to that parent from the move, and held that "a custodial parent may move with the children of the marriage to another state as long as the move does not interfere with the best interests of the children or the visitation rights of the non-custodial parent."[19] The Holder decision explained that "any sincere, good-faith reason will suffice" and that "a custodial parent need not establish a 'real advantage' from the move."[20] This, in essence, made it easier for custodial parents to sustain their burden of proof, while the Court maintained the burden placed upon the non-custodial parent respecting visitation.

Justice Long, in Baures, analyzed the relocation cases decided after Holder.

[A]lthough the cases following Cooper and Holder are clear about the custodial parent's burden of proving good faith, they are unclear and at variance regarding the burden of going forward, the ultimate burden of proof, and the elements of the burden in determining whether the move would be inimical to the interests of the child.[21]

Justice Long lists 12 factors "relevant to the plaintiff's burden of proving good faith and that the move will not be inimical to the child's interests...."[22] An analysis of those factors will ultimately determine whether the removal application will be granted.

Baures resolves the question left open by Cooper and Holder, and clarifies which party has the ultimate burden of proof and the specifics of that burden.

[T]he moving party ultimately bears a two-pronged burden of proving a good faith reason for the move and that the child will not suffer from it. 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....

If, for some reason, the custodial parent fails to produce evidence on the issues to which we have referred, the noncustodial 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 noncustodial parent who must produce evidence opposing the move as either not in good faith or inimical to the child's interest....

Where visitation is the issue, in order to defeat the custodial parent's proofs, the burden is on the noncustodial parent to produce evidence, not just that the visitation will change, but that the change will negatively affect the child.[23]

The Court noted that while visitation is not an independent prong of the two-prong test, it is nevertheless an important element of proof on the ultimate issue of whether a child's interest will suffer from the move.[24]

The Appellate Division, in a recent unreported decision, confirmed that Baures did not alter the burden of proof in a removal application.[25]

The Court [in Baures] emphasized that the custodial parent bears the burden of proving good faith and that the move will not be inimical to the child's interest. Once a prima facie case has been adduced, the burden of going forward shifts to the non-custodial parent who must produce evidence that the move is not proposed in good faith or is inimical to the child's interest.

Once the non-custodial parent has gone forward, the moving party may rest or adduce additional evidence on any matter bearing on the application. The burden of proof remains with the moving party for "the trial court will have to be satisfied by a preponderance of credible evidence that [the moving party] has proved a good faith reason to move and that [the child] will not suffer therefrom." (Citations omitted)[26]

Although Justice Long explained that the burden of the party seeking to relocate with a child "is not a particularly onerous one",[27] she cited examples that should give some encouragement to the non-custodial parent who opposes the removal.

Indeed, there are powerful visitation related issues that can defeat a removal application. For example, if the child has an emotional disorder and the noncustodial parent has provided a needed safety net, the impact of a move, with concomitant irregularity in visitation, might well cause the child to suffer. Likewise, as in this case, the proofs may reveal that because of the child's developmental disorder, a change in visitation will be harmful. But a child need not be ill or disabled for removal to cause harm because of diminished visitation. For example, if the child has a particular talent or skill, a noncustodial parent who has driven him or her to early or late practices, assisted the teacher or coach, organized road trips, attended competitions, and is the constant support in the child's dedication to the talent, can advance a persuasive argument that the inability to fulfill that role and pursue that connection with the child will be the kind of harm that should tip the scales against removal.[28]

In the Batt case,[29] the removal application was denied largely because the seven year old child had special needs, those needs were being very well addressed by the Millburn School system and the noncustodial parent was actively involved in helping the child deal with his problems.

Although somewhat outside the scope of this article, it is appropriate to refer to a concept whose time has come, especially with respect to parenting time which is affected by a child moving to another state. The concept is "virtual visitation". The Appellate Division, in a case decided three months before Baures, approved the use of the internet and camera-computer technology to give the non-custodial parent the ability to communicate with the child on a daily basis.[30] Justice Long discussed the concept with approval in Baures.[31] See "Virtual Visitation: The Wave of the Future in Communication Between Children and Non-Custodial Parents in Relocation Cases."[32] The non-custodial parent, in attempting to prove that the child will suffer from the move, may offer evidence that because of the child's disorder, if applicable, maintaining a long distance relationship via computer, telephone and written communications may be precluded by the child's incapacity and therefore the loss of regular visitation would be harmful to the child.[33]

Because the moving party in a removal case does not have a difficult burden to establish a good faith reason for the move, most of the proofs offered at trial by both parties will focus on whether the move will be inimical to the child's interest. There is no doubt that "virtual visitation" will be an important factor in a determination of that issue.

By way of summary, it is imperative to first determine whether the parties have shared custody, or if there is a more traditional joint custody arrangement. If the parties enjoy true shared custody, then the relocation application is actually a motion for a change of custody, wherein the best interests of the child are the primary consideration. If the parties have a joint custody arrangement, then the removal application requires the custodial parent to prove a prima facie case that there is a good faith reason for the move and that the move is not inimical to the child's best interests. The custodial parent shall also include a visitation proposal in his or her proofs. If the custodial parent sustains that burden of proof, then the burden of going forward shifts to the non-custodial parent to thereafter prove that the move is not in good faith or that the child will suffer from the move. The burdens of proof in relocation-related cases have been ever changing, and, while once confusing to judges, practitioners and litigants alike, the standards today, as set forth in applicable statutes and case law are actually quite clearly defined.

Endnotes

________________________________________
[1]. Baures v. Lewis, 167 N.J. 91 (2001).
[2]. Id. at 97-98.
[3]. Id. at 116.
[4]. Chen v. Heller, 334 N.J. Super. 361, 380 (App. Div. 2000).
[5]. O'Connor v. O'Connor, 349 N.J. Super. 381, 397 (App. Div. 2002).
[6]. Chen, supra, 334 N.J. Super. at 380.
[7]. Voit v. Voit, 317 N.J. Super. 103, 119 (Ch. Div. 1998).
[8]. O'Connor, supra, 349 N.J. Super. at 385.
[9]. Baures, supra, 167 N.J. at 110.
[10]. Cooper v. Cooper, 99 N.J. 42, 50-51 (1984).
[11]. Id. at 53.
[12]. Baures, supra, 167 N.J. at 109.
[13]. Cooper, supra, 99 N.J. at 56.
[14]. Chen, supra, 334 N.J. Super. at 377.
[15]. Id.
[16]. Cooper, supra, 99 N.J. at 57-58.
[17]. Chen, supra, 334 N.J. Super. at 377.
[18]. Holder v. Polanski, 111 N.J. 344 (1988).
[19]. Id. at 349.
[20]. Id. at 352-53.
[21]. Baures, supra, 167 N.J. at 113.
[22]. Id. at 116-17.
[23]. Id. at 118-19.
[24]. Baures, supra, 167 N.J. at 122.
[25]. Batt v. Batt, (App. Div. 2003).
[26]. Id. (Slip opinion, pages 6-7).
[27]. Baures, supra, 167 N.J. at 118; Mamolen v. Mamolen, 346 N.J. Super. 493 (App. Div. 2002).
[28]. Baures, supra, 167 N.J. at 119.
[29]. Batt, supra.
[30]. McCoy v. McCoy, 336 N.J. Super. 172 (App. Div. 2001).
[31]. Baures, supra, 167 N.J. at 105.
[32]. Family Law Quarterly, Volume 36, Number 3, Fall 2002, page 475 et. seq.
[33]. Baures, supra, 167 N.J. at 121.

To Contact Bari Zell Weinberger:
Email: bari@weinbergerlawgroup.com