Court Discusses The Legal Standard To Be Applied When Considering A Request By A Divorced Parent To Remove A Child To Another State

In Mary Elizabeth Walsh-Morales v. Jon D. Morales, Docket No. A0524-09T2 (Appellate Division, November 5, 2010), the state appeals court reiterated the legal standard in New Jersey which must be met before a divorced parent will be permitted to remove a child to another state.

Plaintiff, a divorced mother, told defendant, her former husband, that she planned to remarry and move to another state with their daughter. Defendant immediately brought a court action barring her from removing their daughter out-of-state or, in the alternative, to obtain sole custody of their daughter in New Jersey. The trial court, finding that the mother’s proposed modification of the parents’ custody arrangement was not in the daughter’s best interests, denied plaintiff’s request.

Plaintiff appealed. The appeals court analyzed the plaintiff’s request in light of the applicable legal standard. To do so, the court first identified the preliminary question: whether plaintiff’s action should be considered a removal case or a motion for a change in custody. In a removal case, physical custody and parental responsibility are jointly shared. The amount of time which the parent spends with the child and the division of primary caretaking duties that are performed by each parent are examined to determine whether physical custody and parental responsibility are truly shared jointly by the parents. If so, a more stringent legal standard is applied: the parent who wants to relocate is required to show changed circumstances sufficient to warrant obtaining primary physical custody.

When physical custody is not jointly shared, a less stringent standard is applied. In that case, an application by the parent who is the residential custodian is considered to be a motion for a change in custody. The application will be granted if it is made in good faith and is not inimical to the child’s best interests.

After setting forth the applicable legal standard, the appeals court considered the evidence adduced at trial. Based on the frequency with which defendant assumed the responsibility for his daughter’s food, clothing, morning and nighttime care, education and activities, the appeals court, like the trial court, concluded that the parents truly shared physical custody and responsibility. Under these facts, plaintiff had to show changed circumstances to removal her child out of state, which the court concluded that she failed to do.

The case is annexed here – Mary Elizabeth Walsh-Morales v. Jon D. Morales