Opinion
DOCKET NO. A-3881-11T2
02-08-2013
AMY LOOS, Plaintiff-Appellant, v. ROBERT BROWN, Defendant-Respondent.
Frances A. Hartman argued the cause for appellant (Hartman Group, LLC, attorneys; Ms. Hartman, on the brief). Charlene Cathcart argued the cause for respondent.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Alvarez.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FD-03-0560-10.
Frances A. Hartman argued the cause for appellant (Hartman Group, LLC, attorneys; Ms. Hartman, on the brief).
Charlene Cathcart argued the cause for respondent. PER CURIAM
In this appeal, we reverse a family judge's determination -- reached without benefit of an evidentiary hearing and in the face of competing certifications -- that prohibited the primary custodial parent's removal of the parties' child from New Jersey to North Dakota.
Plaintiff Amy Loos and defendant Robert Brown are the parents of one child, born in 2006. They reached a custody and parenting agreement, memorialized by court order on April 1, 2011, naming Amy as the child's "primary residential/physical custodian" with the expressed right to move to North Dakota with the child. The parties stipulated that the agreement would become binding in ten days "unless either parent files an objection . . . or revokes consent in writing." Ten days later, Robert filed a one-page "application for post-disposition relief," requesting rescission of the agreement insofar as it allowed Amy to remove the child from the State; he did not seek to alter the designation of Amy as the child's primary physical custodian and provided no factual basis other than the following: "Mother Amy Loos should not have right to leave the State at this time."
Consequently, Amy moved for leave to remove the child to Minot, North Dakota, outlining in detail the basis for her desire to move and discussing other factors referred to in Baures v. Lewis, 167 N.J. 91, 116-17 (2001). Robert opposed the motion, disputing many of Amy's contentions. After argument and without an evidentiary hearing, the trial judge rendered an oral decision in which he discussed most of the Baures factors and ultimately denied the motion because, in his view, "the reasons given for the move" were not "substantial." Amy appealed and, for the reasons that follow, we reverse.
We start by recognizing that the parties agreed Amy would be the custodial parent. In Baures, the Court recognized that "[w]hen initial custody is decided, either by judicial ruling or by settlement, the ultimate judgment is squarely dependent on what is in the child's best interests[;] [w]hoever can better advance the child's interests will be awarded the status of custodial parent." 167 N.J. at 115. Thus, the parties implicitly agreed Amy could better advance the child's interests.
In a series of cases culminating with Baures, the Court recognized that the template for removal had too often allowed the impact on the noncustodial parent's visitation schedule to preclude a custodial parent's rights. As a result, Baures endeavored to give "custodial parents the same freedom enjoyed by noncustodial parents to seek a better life." 167 N.J. at 113. As a result, the Court declared that "the emphasis" had to be "not on whether the children or the custodial parent will benefit from the move, but on whether the children will suffer from it." Ibid. (quoting Holder v. Polanski, 111 N.J. 344, 353 (1988)). Based on these and other considerations fully described in Baures, and that do not bear repeating here, the Court determined that the moving party "bears a two-pronged burden of proving a good faith reason for the move and that the child will not suffer from it." Id. at 118. This burden, the Court held, "is not a particularly onerous one." Ibid.
In denying relief, the trial judge here placed far too much weight on the impact removal would have on Robert's rights and interests. Indeed, he should not have assigned weight to any of the circumstances contained in the parties' competing certifications because the facts were largely disputed; the judge should have recognized that Amy had satisfied the burden of presenting a prima facie case and conducted an evidentiary hearing.
Despite the tenor of the judge's original oral decision, which suggested Amy had not presented a good faith basis for removal, the judge later provided us with amplification, suggesting he had, in fact, found a good faith basis for Amy's desire to move to North Dakota:
It is necessary to first point out that the denial of [Amy's] request for relocation was not based on a finding that [she] failed to articulate a good faith basis for the move. Rather, as articulated on the record, I concluded that [Amy's] basis for the move did not outweigh [Robert's] interest in maintaining a relationship with the child and the potential harm that could result to the child by preventing him from having frequent contact with his father and paternal grandparents.Later in his opinion, the judge recognized that his earlier oral decision did not contain a statement that Amy had asserted a good faith basis for relocation; in responding to Amy's contentions, the judge claimed in his amplification that Amy's contention that he had "concluded her basis for relocation was not in good faith is erroneous." We interpret these statements as recognizing that Amy had, in fact, presented a prima facie case of a good faith move.
Indeed, Amy asserted that her desire to move to North Dakota was to be nearer her family with the likely potential for improved employment without the burden of shelter expenses currently incurred in New Jersey. Id. at 118. Other than the factual disputes regarding the impact on Robert's visitation rights, Amy sustained her burden of presenting a prima facie case, placing the burden of going forward on Robert to "produce evidence opposing the move as either not in good faith or inimical to the child's interest." Id. at 119.
In responding, Robert disputed practically everything Amy asserted in her lengthy supporting certification, and Amy replied to further dispute Robert's certification. It is not helpful to air those disputes here. The fact is that the parties' disputes should not have been weighed or evaluated by resort solely to the parties' competing certifications. See, e.g., Mackowski v. Mackowski, 317 N.J. Super. 8, 12 (App. Div. 1998); Wilke v. Culp, 196 N.J. Super. 487, 501 (App. Div. 1984), certif. denied, 99 N.J. 243 (1985). Once Amy presented a prima facie case, the judge should have scheduled an evidentiary hearing to resolve the parties' many factual disputes.
We view the judge's opinion as erroneously favoring Robert's factual position on matters which were not only disputed but in which, on their face, the parties were equally effected. For example, the judge was particularly concerned with the impact the move to North Dakota would have on the child's relationship with his paternal grandparents without appreciating that the denial of removal would, in light of Amy's limited means, preclude the child from having a relationship with his maternal grandparents and other family members in North Dakota. In addition, the judge chose to give no weight to the fact that Robert's "current employment is based online," suggesting there was no reason he could not do that work just as easily in North Dakota. Although stating he had not factored in this circumstance, the judge did note that Robert "has no family or support system in North Dakota" without an apparent similar concern that his decision required Amy to remain in New Jersey where she has no family or support system.
Reversed and remand for an evidentiary hearing. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION