Baures v. Lewis

• Decision Date: 23 April 2001
• Citation: 770 A.2d 214,167 N.J. 91
• Parties: Carita L. BAURES, Plaintiff-Appellant, v. Steven R. LEWIS, Defendant-Respondent.
• Court: New Jersey Supreme Court

770 A.2d 214

167 N.J. 91

Carita L. BAURES, Plaintiff-Appellant, v. Steven R. LEWIS, Defendant-Respondent.

Supreme Court of New Jersey.

Argued January 17, 2001.

Decided April 23, 2001.

Veronica M. Davis, argued the cause for appellant, (Lomurro, Davison, Eastman & Munoz, Freehold, attorneys; Cheryl K. Brunner, North Brunswick, on the brief).

Barbara L. Birdsall, Neptune, argued the cause for respondent, (Stout & O'Hagan, attorneys). The opinion of the court was delivered by LONG, J.

Ideally, after a divorce, parents cooperate and remain in close proximity to each other to provide access and succor to their children. But that ideal is not always the reality. In our global economy, relocation for employment purposes is common. On a personal level, people remarry and move away. Noncustodial parents may relocate to pursue other interests regardless of the strength of the bond they have developed with their children. Custodial parents may do so only with the consent of the former spouse. Otherwise, a court application is required.

Inevitably, upon objection by a noncustodial parent, there is a clash between the custodial parent's interest in self-determination and the noncustodial parent's interest in the companionship of the child. There is rarely an easy answer or even an entirely satisfactory one when a noncustodial parent objects. If the removal is denied, the custodial parent may be embittered by the assault on his or her autonomy. If it is granted, the noncustodial parent may live with the abiding belief that his or her connection to the child has been lost forever.

Courts throughout the country, grappling with the issue of relocation, have not developed a uniform approach. Ann M. Driscoll, Note, In Search of a Standard: Resolving the Relocation Problem in New York, 26 Hofstra L.Rev. 175, 176 (1997). Some use a presumption against removal as their point of departure; others use a presumption in favor of removal; still others presume nothing, but rely on a classic best-interests analysis. Id. at 178.

We have struggled to accommodate the interests of parents and children in a removal situation in our prior cases. Holder v. Polanski, 111 N.J. 344, 544 A.2d 852 (1988); Cooper v. Cooper, 99 N.J. 42, 491 A.2d 606 (1984). In so doing, we have developed something of a hybrid scheme. Although it is not based upon a presumption in favor of the custodial parent, it does recognize the identity of the interests of the custodial parent and the child, and, as a result, accords particular respect to the custodial parent's right to seek happiness and fulfillment. At the same time, it emphasizes the importance of the noncustodial parent's relationship with the child by guaranteeing regular communication and contact of a nature and quality to sustain that relationship. Further, it incorporates a variation on a best interests analysis by requiring proof that the child will not suffer from the move.

We revisit the issue in this appeal, not only to resolve the matter before us, but because of what we perceive as 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.

I

Carita Baures (Baures), a native of Wisconsin married Steven Lewis (Lewis), a native of Iowa and an officer in the United States Navy, on October 5, 1985, in Rothschild, Wisconsin. Their only child, Jeremy, was born on June 24, 1990. During the marriage, the couple lived in the various locations in which the Navy billeted them. In 1994, they moved to New Jersey when Lewis was stationed in Leonardo.

At age two, Jeremy began to exhibit developmental difficulties. By 1994, Jeremy, then aged four, was diagnosed with Pervasive Developmental Disorder (PDD), a form of autism.¹ Over the next few years, through trial and error, the parents arranged an effective therapeutic and educational regimen for Jeremy through a combination of public school and the Douglass College Outreach Program.

In 1995, recognizing that their financial resources were being taxed to the limit, Baures and Lewis discussed moving to Wisconsin. Baures' parents live in Wisconsin and are retired school teachers who offered to help care for Jeremy while Baures and Lewis worked. According to both parties, the couple planned to move to Wisconsin after Lewis was discharged from the Navy in 1998. In anticipation of the discharge, Baures' parents sold their home in Schofield, Wisconsin and moved to Galesville because, according to them, it was a short distance to the Chileda Institute (Chileda), a Program for autistic children. Lewis flew to Wisconsin to research job opportunities.

In 1996, escalating marital discord brought the case to court. Lewis sought custody of Jeremy because he believed that Baures was going to remove the child to Wisconsin. One day before the hearing, Baures filed a complaint for divorce alleging extreme cruelty. In response to Lewis's application for custody, Baures denied that she had any intention of moving Jeremy out of New Jersey. The parties then entered into a consent order that provided for custody and visitation and restrained both parties from leaving New Jersey with Jeremy. Baures and Lewis separated in late 1996. In April 1997, Baures filed an amended complaint for divorce requesting permission to relocate to Wisconsin. A three-day trial was held to resolve the issue.

At trial, Baures claimed that she should be allowed to relocate to Wisconsin because the parties had limited funds and could no longer afford to live in New Jersey without the help of her parents. Without a vehicle (Lewis had taken the family car), Baures had no way to get Jeremy to his special programming or to his doctors. Moreover, because Jeremy is a child with special needs, he could not be admitted to regular day care. Baures testified that in Wisconsin, her parents would be able to provide child care and shelter for her and Jeremy so that she could work.

Although Baures holds a master's degree in human resources management that she obtained in 1989, she never worked in that field and has held only part-time cleaning and baby-sitting jobs since Jeremy was born. She attempted to find more suitable employment but, of the twenty-four jobs in her field that she researched, Baures testified that none was able to provide child care for Jeremy because of his special needs. In June of 1996, Baures' parents came to New Jersey to help her care for Jeremy and remained for over a year after Lewis took Baures' name off the checkbook, credit cards and savings account, and denied her the use of the automobile. In that time, Baures' father transported Jeremy to and from his programming, and provided additional child care. In total, Baures' parents paid her in excess of one-thousand dollars per month to supplement the court ordered child support she received in the amount of one-hundred dollars per week.

Baures testified that the Chileda Institute offers outreach programming to children who have been diagnosed with autism or PDD. The program is similar to the Douglas Program in that it provides trained professional therapy for the child at home. Chileda is located within twenty minutes of Baures' parents' house. Baures inquired whether Jeremy would be eligible for services at Chileda and faxed the school Jeremy's diagnostic materials and other documentation. A representative of Chileda responded that, based on the materials she had received, Jeremy would be eligible. She could not, however, say specifically what programming would be provided until there was an accurate assessment of Jeremy to determine what approach should be incorporated into the home program. Baures conceded that, although her father visited Chileda, she never did so, and that what she knew about the program was elicited from telephone calls, literature, and her father's visit. Baures offered no information regarding what services are available in the Wisconsin public schools.

Baures acknowledged that Lewis should have ongoing contact with Jeremy. To encourage the relationship, she stated that Lewis could visit Jeremy one week a month and stay in her parents' basement free of charge. That offer was reiterated by Baures' father. In addition, Baures agreed to pay half of the transportation costs from New Jersey to Wisconsin if Lewis could obtain an economical rate.

On cross-examination, Baures testified that Lewis was a good father to Jeremy, and that his presence in Jeremy's life is important to the child's progress. Moreover, she acknowledged that in the initial action instituted by Lewis to prevent her from moving to Wisconsin, she had stated that if Jeremy was to leave the State of New Jersey, he would lose his relationship with his father and would be prevented from attending the Douglass Program, the best available program, both of which would adversely affect his progress.

Joan Hurst, a coordinator at the Douglass Program, testified at trial on Baures' behalf. Hurst was offered and accepted as an expert in the field of autism and PDD. Hurst explained that a child with autism needs a highly structured, full-day program beyond normal school hours that teaches and applies behavior modification techniques throughout the day. Hurst explained that a strong family support system is important because:

[i]t's really the basis of the child's program. The school and the professionals can lay the foundation and show the family what to do, but it needs follow through in all areas of their lives. And since home is really the most common place for them and in their security and where they are most of the time, everything needs to continue when they come home from school. And it needs to continue to go on with the family at home.

When asked what a family member might have to do to continue home programming, Hurst went on:

every minute is a teaching minute ... especially with Jeremy having the diagnosis

...