Should The Decision To Have Children Require A Presumption Of Residential Proximity?

BY

Charles F. Vuotto, Jr.

Parents relinquish many rights upon the birth of a child in order to protect that child’s best interests.  Isn’t it fundamental that among these rights relinquished as a consequence of parenthood is the right to relocate freely?  Put differently, to the extent necessary to facilitate the best interests of the child, should not the autonomy relinquished by parents upon the birth of a child include restrictions upon relocation except in limited circumstances?  When parents decide to have a child, there is no doubt a presumption that those parents should act in the best interests of their child.  As detailed below, the evidence is clear that those best interests include, in most cases, both parents remaining in close geographical proximity to each other – whether married or divorced.  As such, it is argued herein that there should be a legal presumption that parents relinquish their autonomy to relocate upon the birth of a child to the extent necessary to facilitate the best interests of the child except in extraordinary circumstances or where failure to move would cause harm to the child.  This column proposes that the paradigm must shift away from the ever increasing ease with which a custodial parent is permitted to move with the child or children away from the other parent.  If this is accepted, the standards and factors of our existing legal matrix on removal must change. 

The Basic Law of Baures

In 2001, the Supreme Court of New Jersey decided the seminal case governing the law of removal, Baures v. Lewis,[i] which has since served as the legal archetype for removal litigation in New Jersey.

As established in Baures, any parent who seeks removal of a child outside of the state of New Jersey over the objection of the other parent must first demonstrate a prima facie case for removal before the court may further consider the removal application.  Initially, the moving party has the burden “to produce evidence to establish prima facie that (1) there is a good faith reason for the move and (2) that the move will not be inimical to the child’s interests.”[ii]  Like any prima facie demonstration, the moving party must provide facts that, “if unrebutted, would sustain a judgment in the proponent’s favor.”[iii] 

The prima facie demonstration by the custodial parent “is not a particularly onerous one.”[iv] The Supreme Court explained:

[the initial burden] will be met for example, by a custodial parent who shows that he is seeking to move closer to a large extended family that can help him raise his child; that the child will have educational, health, and leisure opportunities at least equal to that which is available here, and that he has thought out a visitation schedule that will allow the child to maintain his or her relationship with the noncustodial parent.[v]

Baures, 167 N.J. at 118.

Hence, in most cases, the custodial parent will be able to make a prima facie showing in favor of removal.  Thereafter, the non-custodial parent must move forward with evidence demonstrating that the removal is “either not in good faith or inimical to the child’s interest.”[vi]  Id.   However, the ultimate burden to demonstrate good faith and that the move will not be inimical to the child remains at all times on the custodial parent.  As stressed in the final paragraph of the Baures opinion:

in a removal case, the burden is on the custodial parent, who seeks to relocate, to prove two things:  a good faith motive and that the move will not be inimical to the interests of the child.”[vii] 

Id. at 122 (emphasis added).

Accordingly, in order to warrant removal, “the trial court will have to be satisfied by a preponderance of credible evidence that [the custodial parent] has provided a good faith reason to move and that [the child] will not suffer therefrom.”[viii]  As detailed below, the Court’s decision to invoke a less onerous demonstration that the move will “not be inimical to the child’s best interests,” as opposed to a more stringent demonstration that the move will be in the child’s best interests,” reflects a clear presumption in favor of a custodial parent’s right to relocate.  Therefore, it is clear that the Supreme Court has placed the far greater burden on the parent seeking to oppose the move. 

A Presumption is Born

  Although several portions of Baures may be subject to interpretation, the easing of the burden on the custodial parent, and the resulting presumption in favor of a custodial parent’s decision to remove a child, is not.

As detailed above, in order to be successful on a removal application, the custodial parent must demonstrate through a preponderance of the evidence that that “(1) there is a good faith reason for the move and (2) that the move will not be inimical to the child’s interests.”[ix]   Many practitioners have mistakenly interpreted the second prong as requiring a “best interests” demonstration, meaning that the custodial parent must demonstrate that the proposed move is in the child’s best interests.  This is incorrect.  All that the custodial parent must show is that the move in “not inimical to the child’s interests,” not “in the child’s best interests.”  Is this purely semantics?  This author thinks not.

Is a demonstration that a proposed move is “not inimical to the child’s interests” synonymous with a demonstration that the move will be in the child’s best interests?  If there is a difference, is it not de minimus?  The answer to both questions is “No.”  There is a marked difference between the two standards.  A demonstration that the move “will not be inimical to the child’s interest” requires only a showing that the child will “suffer” as a result of the move.[x]  In other words, harm must be shown if the move is to occur.  A demonstration that the move will be in the child’s best interest requires not only a demonstration that the child will not suffer from the move, but goes one substantial step further by requiring a demonstration that the move will actually benefit the child.  In other words, a “best interests” standard would require a demonstration that the child’s wellbeing will be better served in the foreign state than in New Jersey.

Why did the Supreme Court adopt the far less onerous standard of “not inimical to the child’s interest” rather than the relied upon “best interests” standard?  Here is where the presumption in favor of the custodial parent’s right to remove a child comes into play. 

Although asserting that the two prong demonstration is not based on a presumption in favor of the custodial parent, the law speaks for itself as it does not require a demonstration that the move would be in the child’s best interests and it further “recognize[s] 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 [through removal of a child outside of the state].”[xi]  Relying on the prior Supreme Court removal cases of Cooper[xii] and Holder,[xiii] the law of Baures “accord[s] special respect to the liberty interests of the custodial parent to seek happiness and fulfillment because that parent’s happiness and fulfillment enure to the child’s benefit in the new family unit.”[xiv]   Quoting from Cooper, the Baures Court emphasized:

The realities of the situation after divorce compel the realization that the child’s quality of life and style of life are provided by the custodial parent. That the interests of the child are closely interwoven withthose of the custodial parent is consistent with psychological studies of children of divorced or separated parents.[xv]

          Further supporting the presumption in favor of the custodial parent’s right to removal of a child, Baures offers the proposition that “social science research has uniformly confirmed the principal that, in general, what is good for the custodial parent is good for the child.”[xvi]  Stated succinctly, Baures directs that there is a presumption that if the custodial parent will benefit from the move, the child in the custodial parent’s care will likewise benefit.  Thus, there is an inherent presumption in favor of the custodial parent’s right to move, ultimately reflected in the less onerous demonstration that the move will not be inimical to the child as opposed to a demonstration that the move is in the child’s best interests.

On What is The Presumption Premised?

                    We must examine the competing premises.  Baures is based on the premise that “what’s good for the custodial parent is good for the child.”  The proposal submitted herewith is that moving children a long distance from one parent is not in their best interest. 

In support of easing the burden on a custodial parent seeking removal of a child outside of the state, Baures relied heavily on “social science.”  As referenced above, the Baures decision focuses on the assertion “that social science research has uniformly confirmed the principal that, in general, what is good for the custodial parent is good for the child.” [xvii]  Is this accurate?  This author suggests not. 

          Baures relied on the social science research conducted by Judith S. Wallerstein & Tony J. Tanke[xviii] (“Wallerstein Study”), as well as Marsha Kline, et al., to support a determination that a child’s well being is directly related to the well being of the custodial parent. However, Baures neglected to stress those social studies that have criticized these studies.  For example, in 2000, Richard Warshak, a clinical and research psychologist, vehemently criticized the Wallerstein study for being based on only ten limited and skewed references, including one written solely by Wallerstein and five others co-authored by Wallerstein.[xix]  Warshak also argued that Wallerstein’s study ignored “the broad consenses of professional opinion, based on a large body of evidence.” [xx]  Warshak concluded that “a comprehensive and critical reading of over 75 studies in the social science literature, including Wallerstein’s earlier reports, generally supports a policy of encouraging both parents to remain in close proximity to the children.”[xxi] 

While admittedly conducted after Baures, an empirical study by Sanford L. Braver, Ira M. Ellman, and William V. Farbricius (“Braver Study”) has emerged that demonstrates the detrimental impact of relocation on children.[xxii]  The Braver Study involved 602 college students whose parents were divorced.  These students were asked questions regarding the relocation status of their parents subsequent to the divorce.  A series of criterion variables were measured, including, but not limited to, emotional health, hostility, physical health, perceived parental caring, parental conflict,  emotional adjustment, general satisfaction with life, distress from the divorce, feelings of emotional parental support, perception of the relationship between parents, parental contributions to college, and general well being.[xxiii]   

                   Based on their studies, Braver, Ellman, and Fabricius, emphasized following:

Putting the point in legal terminology, the burden of persuasion in relocation disputes, on the question of whether the move is in the child’s best interests, should probably lie with the custodial parent who seeks to relocate rather than with the objecting parent.

…Ultimately, however, our data cannot establish with certainty that moves cause substantial harm.  They do allow us to say, however, that there is no empirical basis by which to justify a legal presumption that a move by a custodial parent to a destination she plausibly believes will improve her life will necessarily confer benefits on the children she takes with her.[xxiv]

          Thus, the Braver Study believes the Baures assertion that social science research has uniformly confirmed the principal that, in general, what is good for the custodial parent is good for the child.”[xxv] Indeed, the Braver Study criticized Baures reliance on the Wallerstein Study, stressing that the Wallerstein Study over-generalized prior studies in order to support its conclusions and further misrepresented the facts by failing to recognize findings that contradicted the studies’ conclusion.  Declaring itself “the first direct evidence on relocation” the Braver Study propounds:

Unfortunately, in a recent review of the social science literature undertaken for the legal community (Gindes, 1998), not a singleempirical study could be found containing direct data on the effects of parental moves on the well-being of children of divorce. In its absence, courts appear to have relied instead on quite indirect-and quite controversial-social science evidence about the potential effects of relocation on children. Even more troubling, this controversial evidence appears to have played an important role in generating the recent shift in legal doctrine away from restrictions on moves by custodial parents.[xxvi]

          The Braver Study further adopts Warshak’s criticisms of the Wallerstein Study, noting: “Clearly, courts ought to have better data than was available to the Burgess and Baures tribunals on the question of the impact of parental moves on children and divorce.  We present new data that are far more direct than any previously in literature.”[xxvii]

          The Wallerstein Study continues to be criticized.  For example, Robert Pasahow, a clinical and consulting psychologist, has asserted that “Warshak rightfully argued that Wallerstein took a skewed interpretation of a study on post-divorced fathers and their children.”[xxviii] Pasahow further opined that Wallerstein’s “research minimized the importance of the father to a post-divorce removal because the study was started in the 1970’s when fathers saw little of their children following divorce.”[xxix] Comparing the Wallerstein and Braver studies, Pasahow concluded: “Braver, et. al. provided the first empirically based study examining the effects of post-divorce parental relocation on children’s psychological functioning.  This is in contrast to how Wallerstein presented her opinion about children’s reaction to divorce and then generalized to make predictions about the effects of relocation.  Wallerstein never provided quantitative data.”[xxx]

          More recent research literature supports the Braver Study, and provides further confirmation of the “strong effects on child outcomes due to residential mobility following divorce.”[xxxi]  After a thorough examination of research literature on the issue of removal, William G. Austin, Ph.D., a clinical and forensic psychologist, concluded that the “research literature appears to establish relocation as a general risk process for children of divorce and provides a base rate level of harm due to relocation that can be found in the effect sizes in the survey studies.”[xxxii]

          The social science embodied in the Wallerstein Study so heavily relied upon by Baures is now eroded. [xxxiii]  In its place, there is general recognition of the impact of removal on a child that belies the very premise upon which Baures was decided: What is good for the custodial parent is not automatically good for the child when it comes to removal. 

It is, however, acknowledged that there are experts in the field who believe there is limited scientific data to draw any conclusions with regard to the impact of removal on children in the individual case.  Some believe that both streams of research, (i.e., (1) what is good for the custodial parent is good for the child (Wallerstein Study) or (2) relocation confers disadvantages (Braver)) – will ultimately fail to be applicable to the individual case, largely because both streams do not capture adequately the full range of variables that may mediate the relationship between relocation and child status over time. Therefore, these experts believe that to impose either theoretical stance as scientifically credible in the individual case may lead to less well informed or poorer decisions.  Needless to say, this author does not agree with this line of thought.

There is no question, however, that science should not be given undue weight one way or the other.  The point is not to over-emphasize the scientific basis on which the law is founded because those studies, even if they are reliable and valid, may not be generally applied to individual cases.  The science should serve as a template – a starting point for thinking about a case – but not as the over-arching controlling factor.  Individual cases should be examined against the template, and if they do not conform, then the science should not over-ride common sense or reasoned single case arguments.  The science can produce light, but does not necessarily illuminate the path.  It is quite possible that the “science” has caused the skewed result in Bauers.

Conclusion

Is there precedent for a presumption that parents relinquish their autonomy to relocate upon the birth of a child?  Yes, to the extent that there are states that implement a presumption against removal by requiring the custodial parent to demonstrate that the move will be in the best interests of the child, including Pennsylvania, Montana, Alabama, Nebraska, Louisiana, and Illinois.

As the line between custodial and non-custodial parents becomes more and more blurred due to increased parenting time awards, as the scientific research and literature indicate that the premise upon which Baures was decided is flawed, and as evidence continues to reflect the negative impact of removal upon children, the law must be corrected in order to protect the interests of both the child and the non-custodial parent in removal litigation.  Why shouldn’t there be a presumption against removal based on the premise that, upon the birth of a child, a parent automatically relinquishes his or her right to relocate to the extent necessary to facilitate the best interests of the child?  The standard to be applied in order to overcome such a presumption against removal is left for another day.  Should the standard be a demonstration that harm to the child will occur if the proposed removal is not permitted?  Should it be a less stringent demonstration that the proposed removal will substantially benefit the child?  This author proposes, subject to discussion and debate, that there should be a presumption against removal (which may even be extended to long moves within a state) except upon a showing of extraordinary circumstances or of harm to the child if the move were not to occur.  While the standard for overcoming the presumption against removal remains open to debate, the need to reexamine the issue is clear.

Special thanks to Lisa Steirman Harvey, Esq., Of Counsel to Tonneman, Vuotto & Enis, LLC, Eileen A. Kohutis, Ph. D., Robert Rosenbaum, Ed.D., D.F.C. and William Frankenstein, Ph.D.