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Donoian 8.14.06 VOL. CLXXXV– NO.7 – INDEX 618 AUGUST 14, 2006 ESTABLISHED 1878 FAMILY LAW When Familial Relationships Break the Mold Will societal changes impact the law applied to removal matters? minutes away from the children — would have parenting time with the children from By Nicole T. Donoian Chen v. Heller, 334 N.J. Super. 361, 380 Sunday through Wednesday morning every (App. Div. 2000) and Voit v. Voit, 317 N.J. week. At this point, the analysis is relative- n a previous article, I suggested that Super. 103, 112 (Ch. Div. 1998). On the ly straight forward. We would apply the 12 many career-minded people are opting other hand, when the relocating parent is factors as articulated in Baures v. Lewis, Ito postpone marriage until later in life. the primary caretaker, the removal is ana- 167 N.J. 91 (2001), to demonstrate that “Sorting Out Premarital Assets,” Aug. 15, lyzed in accordance with Baures v. Lewis, mom has a good faith reason for moving 2005 [181 N.J.L.J. 608]. Now, as more and 167 N.J. 91 (2001), and rests on whether and that the move will not be inimical to the more professionals merge their respective the move is made in good faith and children’s interest: investments, property and retirement plans whether the move will be inimical to the after marriage, equitable distribution has child’s interests. (1) the reasons given for the become more fact sensitive, leaving poten- However, what analysis is applied move; (2) the reasons given for tial gaps in the law. Societal changes have when the parties do not share physical the opposition; (3) the past histo- impacted other areas of the law as well, custody and neither party truly stands out ry of dealings between the par- including removal applications. as the primary caretaker? Families often ties insofar as it bears on the rea- When a parent wishes to relocate depend on more than one full-time bread- sons advanced by both parties with a child, the first question that must be winner. As moms and dads continue to for supporting and opposing the addressed is whether this is a removal work longer hours — five or six days a move; (4) whether the child will case or a change of custody, as each case week — the needs of their children must receive educational, health and requires a different standard. O’Conner v. be met by third-party caregivers. This leisure opportunities at least O’Conner, 349 N.J. Super. 381, 397 (App. familiar scenario does not fit either of the equal to what is available here; Div. 2002). When both parents truly share custodial circumstances outlined above (5) any special needs or talents both legal and physical custody of the and found in current case law. of the child that require accom- child, the analysis must be based upon a Consider the following hypothetical: A modation and whether such change of custody and the parent seeking new client has advised you that she wants to accommodation or its equivalent to relocate must show that it is in the move from New Jersey to Colorado. A large is available in the new location; child’s best interest for residential custody software company has recruited your client (6) whether a visitation and com- to be primarily with the relocating parent. and offered to double her $250,000 annual munication schedule can be O’Conner, 349 N.J. Super at 398, citing salary. She wants to take her six and eight developed that will allow the year olds with her but their father will not noncustodial parent to maintain Donoian is a member of the Family consent. When the parties divorced six a full and continuous relation- Law Practice Group at Flaster/Greenberg years ago, they decided that the children ship with the child; (7) the likeli- of Cherry Hill. Donoian served as the would live with their mother and that she hood that the custodial parent Young Lawyer Trustee of the Camden would be the primary caretaker. They also will continue to foster the child’s County Bar Association in 2005-2006. decided that dad — who lives just fifteen relationship with the noncustodi- This article is reprinted with permission from the AUGUST 14, 2006 issue of the New Jersey Law Journal. ©2006 ALM Properties, Inc. Further duplication without permission is prohibited. All rights reserved. 2 NEW JERSEY LAW JOURNAL, AUGUST 14, 2006 185 N.J.L.J. 618 al parent if the move is allowed; parent in the child’s daily life: the concept of ‘primary caretaker,’ (8) the effect of the move on the Supreme Court of Appeals of extended family relationships The evidence established that the West Virginia articulated the many here and in the new location; (9) parties shared the custodial tasks that make one parent the pri- if the child is of age, his or her responsibilities and duties in meet- mary, rather than secondary, care- preference; (10) whether the child ing Ryan’s needs; both parties pur- taker: preparing and planning of is entering his or her senior year chased clothing for Ryan; plaintiff meals; bathing, grooming, and in high school, at which point he primarily attended to Ryan’s reli- dressing; purchasing, cleaning and or she should generally not be gious instruction and his medical caring for clothes; medical care, moved until graduation without appointments and care, although including nursing and general trips his or her consent; (11) whether defendant participated; defendant to physicians; arranging for social the noncustodial parent has the took Ryan to sign-up for his vari- interaction among peers; arranging ability to relocate; (12) any other ous sporting activities such as alternative care, i.e., babysitting or factor bearing on the child’s inter- baseball, basketball and soccer, daycare; putting child to bed at est. and attended almost all of Ryan’s night, attending to child in the practices and games; plaintiff middle of the night, and waking Subsequent discussions with your attended all of Ryan’s baseball child in the morning; disciplining; client reveal that she is a high-powered games unless she was traveling; and educating the child in a reli- executive for a multinational corporation defendant attended all Ryan’s gious or cultural manner. As do based in Philadelphia. Mom typically events at school, such as concerts many other jurisdictions, we find leaves the house at 7:30 a.m. and arrives or plays. The parties also shared that that State’s highest court’s home at 7:30 p.m. She travels for business the responsibility for attending definition articulates many of the approximately ten days each month. Mom parent-teacher conferences, and duties of a primary caretaker. advises you that she has spent the past six defendant attended all of the back- O’Conner, 349 N.J. Super. at 399 years relying heavily on a nanny, attended to-school nights. Defendant went (quoting Pascale v. Pascale, 140 only a handful of parent-teacher confer- on a school field trip with Ryan to N.J.583, 598-99 (1995) (other ences and, while she knows the names of the Museum of Natural History. citations omitted)). the children’s physicians, acknowledges Defendant also signed most of that the nanny has taken the children to Ryan’s report cards. When applying these factors, you more doctors’ appointments than she has. would be hard pressed to show that either The nanny also assists the children with After applying the analysis to your your client or the children’s father is truly their homework, chauffeurs them to and case, you determine that the children’s the primary caretaker. The division of from activities and prepares their dinner. nanny and paternal grandmother have duties lies primarily with the children’s Consistent with your client’s busy sched- shared more of these duties than your nanny and paternal grandmother. As ule, the nanny arrives at 8:00 a.m. to care client or her ex-husband. Next, you such, your case does not fit either an for the children and leaves around 7:00 attempt to analyze whether your client, or O’Conner or Baures analysis. Do you p.m. As for dad, he is also a professional the children’s father, is the primary care- then rely on the “best interests” analysis and his schedule mirrors the children’s taker: that guides our courts in issues concern- mother’s schedule. He too depends on a ing children? third party to care for the children; his Although both [primary caretaker Practitioners must find even more mother prepares their meals, drives them to and secondary caretaker] roles creative ways to apply the facts of such activities and helps with homework and create responsibility over children removal matters to existing law, particu- school projects. of divorce, the primary caretaker larly as parents continue to adapt to Initially you believed the case would has the greater physical and emo- increasing economic demands and as be decided pursuant to a Baures analysis. tional role. Because the role of familial relationships continue to evolve. However, on learning that the children ‘primary caretaker’ can be filled Our trial courts are guided by existing were cared for by their nanny and grand- by men or women, the concept case law when rendering decisions in mother, you realize that a different stan- has gained widespread accep- these very difficult and fact-sensitive dard must be applied. tance in custody determinations. matters. But what standard do you pre- First, you review the analysis of Indeed, many state courts often sent to the court when the parties do not shared custody in O’Conner where the determine custody based on the share custody and neither parent is the court not only focused on the time that the concept of “primary caretaker.” primary caretaker? As in cases involving child (Ryan) spent with each parent, but the welfare of the child, perhaps the “best also focused on the involvement of each In one of the earliest cases using interests” standard would apply.
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