New Jersey Court Affirms Order Allowing Primary Caretaker to Relocate Couple’s Twins Out of State

A primary caretaker’s job offer warranted the removal of a divorced New Jersey couple’s minor children to another state. In a recent Appellate Division ruling, a couple married in 2005 and had twins in 2009. At the time of their marriage, both spouses were employed by an investment banking firm. Not long after their wedding, however, the husband lost his job and remained unemployed until he filed for divorce in 2011. During this time, the wife earned about $300,000 per year.

About one year after the father initiated divorce proceedings, his former wife lost her job effective December 31, 2012. She was also promised a bonus and severance package worth approximately $200,000. Following a divorce trial, the couple reached a custody settlement that was incorporated in their Dual Final Judgment of Divorce (“DJOD”).  In September 2012, the family court entered a final judgment of divorce which provided that the mother was designated as the Parent of Primary Residence (the “PPR”) and the father as the Parent of Alternate Residence (the “PAR”).

A few days before the divorce judgment was entered, the mother notified her former husband that she received a job offer in Ohio. In her letter, the woman stated she was only provided with seven days to consider the offer. The mother then filed an Order to Show Cause (“OTSC”) with the court. In her OTSC, the woman asked the court to allow her to move the couple’s children to Ohio if their father refused to provide his consent. The court granted the wife’s request and allowed her to temporarily move the twins to Ohio in order to accept her employment offer.

Next, the father filed his own  OTSC  seeking to vacate the court’s temporary order. Following an October hearing, the trial  judge found that the mother did not engage in bad faith and stated her former husband was not surprised by her request. According to the judge, the woman informed her former husband that she was considering relocating to Ohio for work at the beginning of the couple’s divorce trial. As part of his order, the judge created a temporary parenting plan that would provide both parents with a comparable amount of parenting time. In addition, the judge stated it was undisputed that the wife was the twins’ primary caretaker. Finally, the judge said it was reasonable for the mother to accept a high paying position out of state, given the current economic climate.

At a final hearing on the matter, both parents provided testimony in favor of their position regarding relocation of the couple’s children. The mother also provided expert evidence to support her request. After examining the Baures factors, the judge granted the mother’s request to relocate and implemented the parenting plan she suggested after stating the twins’ father failed to offer an alternative plan. The judge also ruled that the woman’s severance package was not subject to equitable distribution and extended the former husband’s alimony term to 30 months.

On appeal, the Appellate Division stated that  a family court’s findings are binding as long as they are supported by sufficient credible evidence. Next, the court referenced the factors which a judge must  consider in deciding a parent’s application for the removal of a child (i.e.- to be allowed to move out of the State of New Jersey with the parties children if the other parent is remaining in New Jersey and opposes the move) from the State of New Jersey (sometimes referred to as a Removal hearing).  In addition, the current custody situation determines what standard of review applies when a family court considers such a request.

The court stated that the two-part test enumerated in Baures applies when one parent serves as the primary caretaker of a former couple’s children. In addition, the appellate court said a removal request must be granted if the primary caretaker has a good faith reason for the move, and the children will not suffer as a result. After a movant has made a prima facie case in favor of his or her removal request, it is up to the non-moving party to demonstrate the request was not made in good faith or would be detrimental to the former couple’s children.

After examining the record in the case, the Appellate Division stated the family court judge correctly concluded the former wife made a prima facie case in support of the interstate move. In addition, the court said the former husband failed to offer any evidence that the removal request was not made in good faith or would somehow harm the couple’s twins. The court added that the unemployed father who has no family or property in New Jersey offered no valid reason why he couldn’t move to Ohio in order to be closer to his children.

Next, the appellate court dismissed the man’s argument that the family court judge committed error when he applied the Baures analysis to the case. Regardless, the court stated it would have reached the same result under the father’s proffered “best interests” analysis because the former wife was the sole wage earner for the family, she was motivated to relocate due to financial need, and expert testimony supported the woman’s request. The court also found it significant that the former husband failed to pay his child support obligations. Finally, the Appellate Division disagreed with the former husband’s additional claims.

Ultimately, the Superior Court of New Jersey, Appellate Division affirmed the lower court’s order permitting the former wife to remove the couple’s children to Ohio.

Child custody arrangements generally work best when reached and carried out through the collaborative efforts of both parents. Unfortunately, life-changing events can pose new challenges for your family. The hardworking attorneys at Goldstein Law Group have the experience and skill required to help you achieve a workable child custody result. To request a confidential consultation with a seasoned New Jersey lawyer, call Goldstein Law Group at 732-967-6777 or contact us online.

Additional Resources:

Schwager v. Schwager, NJ: Appellate Div. 2015

More Blog Posts:

Establishing a ‘Change of Circumstances’ in New Jersey for Modifying Custody in a Multi-National Situation, February 21, 2015, New Jersey Divorce Lawyers Blog

Negotiated Property Settlement Agreements (a “PSA” or “MSA”) Can be Tough to Change in New Jersey, February 19, 2015, New Jersey Divorce Lawyers Blog


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