After two long years in a bitter divorce and custody fight, John and Mary Doe have finally put their disagreements behind them. During the course of the litigation, virtually every issue was contested and ultimately litigated, including alimony, property division, custody and visitation. In addition to entering its financial orders, the court ordered joint custody of the parties' three sons (ages 14, 11 and 8) with Mary having primary physical custody. Although John was not thrilled with the court's decision to grant Mary primary physical custody, he has accepted it and has religiously followed the court's visitation schedule of alternating weekends from Fridays at 6:00 p.m. through Sundays at 8:00 p.m and every Wednesday from 4:00 p.m. to 8:00 p.m. In addition, Mary and John have also arranged additional visitation when it is convenient for both of them. As a result, John has developed a close bond with all three children. John owns and operates his own stationary store in Norwalk so he is able to be flexible with his hours to accommodate the children. Mary and the children also live in Norwalk, less than 15 minutes away from John's home.
The trial ended in the summer of 1994 and for the last two and one-half years there have surprisingly been no problems. The parties have of course had a few disagreements over the years regarding educational issues, yet there have been no return trips to the Superior Court and no modifications to the dissolution judgment. However, Mary has just informed John that she and her new husband, Fred (they were married only six months ago), plan to move to Bangor, Maine with the children because Fred has finally found a job which will pay him what he was previously making in Connecticut, before he was fired. John is very much against this proposed move because he believes it will irreparably damage his relationship with the three boys and break the very tight bonds he has worked so hard to develop. Mary has filed with the superior court a motion seeking permission to relocate and John has filed a motion seeking to enjoin the relocation. The issue of relocation was not addressed by the parties or the court at the time of trial.
CHARACTERISTICS OF A RELOCATION CASE
The above scenario is becomingly increasingly more common in family courts throughout the country in general, and the Connecticut Superior Court in particular. These types of cases, commonly referred to as "relocation cases, " raise some of the most difficult legal, psychological and emotional issues facing our courts today. The court must balance, among other things, the custodial parent's constitutional right to move with the noncustodial parent's right to regular and consistent parenting, all against the backdrop of what is in the best interests of the children, which may or may not be consistent with either of the parents' rights.
The increasing number of relocation cases being litigated throughout the country may be attributed to some or all of the following factors: (1) society is becoming more mobile in general; (2) the downsizing of corporate America; (3) women, who statistically are traditionally the custodial parent, gaining a greater presence in the work force; (4) increase in divorce and therefore second marriages; and (5) the "grass is always greener" theory. The increasing number of relocation cases being litigated throughout the country means that courts will be faced with perhaps the most difficult and heart wrenching decisions that any judge must make. A court's decision in these cases represents a turning point in the life of a child. Whether the court permits or restricts the custodial parent's relocation efforts, the future development of the child will be set forever in motionin one direction or the other. The child's emotional, psychological, physical, educational, financial and perhaps even spiritual well-being will all be permanently affected by the scope of the court's decision. In fact, it may turn out to be the trial judge who becomes the most influential person in the child's life.
HOW STATES HANDLE RELOCATION CASES
Many states have enacted statutes to provide guidance to the trial court in resolving relocation disputes, while others states have left the matter solely to the developing body of case law. States with statutory enactments include California, Illinois, Nevada and Texas.i California's statute permits a custodial parent to relocate with a child so long as the move does not prejudice the rights or welfare of the child. The Illinois statute places upon the relocating party the burden of proving that relocation is in the best interest of the child. Texas takes a somewhat different approach and penalizes the relocating parent who moves more than 100 miles from the noncustodial parent's home by requiring the custodial parent to pick up and drop off the child at the noncustodial parent's home. The courts in Connecticut do not have the benefit of a clear statutory enactment outlining such things as who has the burden of proof and what factors should be considered by the court in reaching a decision in a relocation case. Moreover, neither the Connecticut Supreme Court nor the Appellate Court has spoken on the issue of post-dissolution relocation. Thus, family law practitioners throughout the state have instead been handling their cases on an ad hoc case by case basis.ii Furthermore, without any Connecticut appellate authority on the subject, the Superior Court has frequently turned for guidance to cases from other jurisdictions. In 1996 alone, the highest courts in California, Colorado, Florida, New York and Tennessee have issued significant decisions in relocation cases.iii
DAVIS V. DAVIS
Recently, however, the Connecticut bench and bar has been the beneficiary of a comprehensive superior court decision from perhaps the most learned trial judge in the state in the area of child custody law, Judge Joseph Steinberg. In Davis v. Davis, (Middletown, Oct. 3, 1996), Judge Steinberg, relying primarily upon the well known New Jersey case of D'Onofrio v. D'Onofrio (1976), sets forth in detail the criteria to be used by the court "as a basic foundation for evaluating relocation issues." The court further discusses some additional basic principles established by D'Onofrio.
In Davis, the parties were divorced in September of 1993, at which time the court adopted the terms of a Separation Agreement granting joint legal and physical custody of their two children, ages 11 and 7. The judgment provided neither a specific visitation schedule nor a child support order. Following the divorce, the parties continued to live together for ten months and continued to co-parent the children in the very same manner they did during the marriage, as the mother played the primary role in organizing the children's schedules. After the ten months, the father moved outside of the children's school district while the mother rented a home in the children's school district.
The children lived with their mother during the week and spent three out of every four weekends with their father from Fridays at 5:00 p.m. until Sundays at 8:00 p.m. The father also had the children on Wednesdays from 4:00 p.m. until 8:00 p.m. The children also spent two weeks every summer in Illinois with both their maternal and paternal grandparents.
Both parties developed relationships with other individuals; the father began dating another woman and developed a close relationship with her, while the mother became engaged to an individual holding a Doctorate in Pharmaceutical Sciences and a Doctorate in Pharmacy. Despite repeated and well intentioned efforts, the mother's fiancee was unable to find employment anywhere in Connecticut. He eventually accepted a job in Maryland with the Food and Drug Administration. Mrs. Davis, a trained biochemist who worked part-time during the marriage, also accepted a job with the FDA in Maryland.
Mrs. Davis therefore requested permission from the court to relocate to Maryland with the children and Mr. Davis, who initially considered relocating , objected because he was just beginning a new job and because his girlfriend did not have physical custody of her children and would be forced to forfeit much visitation is she were to relocate.
It is against these facts that Judge Steinberg provided much needed guidance in the area of relocation law. The opinion begins with the recognition that "Connecticut has not yet had the benefit of an appellate review of relocation criteria in its most virulent form, post dissolution" and that relocation disputes "now represent a significant portion of this court's docket and would benefit from a clear statement of the criteria to be used in determining if relocation is in the best interests of the minor children involved." The court then immediately adopts the following criteria "as a basic foundation for evaluating relocation issues."
- The prospective advantages of the move in terms of its likely capacity for improving the general quality of life for both the custodial parent and the children.
- The integrity of the motives of the custodial parent in seeking the move. Whether the removal is inspired primarily to defeat or frustrate visitation by the noncustodial parent and whether the custodial parent is likely to comply with substitute visitation orders when no longer subject to the jurisdiction of the courts of this state.
- The integrity of the noncustodial parent's motives in resisting the removal.
- The court must be satisfied that there will be a realistic opportunity for visitation in lieu of the weekly pattern which can provide an adequate basis for preserving and fostering the parental relationship with the noncustodial parent if removal is allowed.
The court in Davis, in addition to formally adopting the above criteria for Connecticut relocation cases, also espoused three basic principles initially set forth by the New Jersey court in D'Onofrio. These three principles, which the court describes as "basic" are, quite frankly, all favorable to the party seeking to relocate. The first principle suggests that courts should not insist on sacrificing relocation advantages and forfeiting a better lifestyle for the custodial parent and the children solely to maintain weekly visitation by the noncustodial parent, at least where reasonable alternative visitation is available and where the advantages of the move are substantial.
Second, the court notes that it is uncontradicted that "the possibility that uninterrupted visitation of a week or more several times a year, where the noncustodial parent is in constant and exclusive parental contact" and has to provide daily for the children as if he or she were the primary physical custodian may well work better than the usual and customary "weekly visitation which involves little if any parental responsibility."
The third principle noted by the court is that a noncustodial parent is perfectly free to leave the state despite the children's continuing residence in order to seek a better life without interference by the noncustodial parent (query whether a custodial parent may seek to restrain a noncustodial parent from relocating on the ground that such a move is not in the best interest of the child). The custodial parent is entitled to the same option, the court reasons,particularly where relocation is truly advantageous and where the noncustodial parent can continue to maintain adequate contact with the children, albeit by a different visitation schedule.
After setting forth both the criteria to be applied by the court and the principles of D'Onofrio to be considered, Judge Steinberg adds:
[u]nless the facts of the case dictate otherwise, divorce should not empower a non-custodial parent to control the major life decisions of a custodial parent. Divorce is intended to sever that control. As a corollary, divorce should not empower a custodial parent to arbitrarily excise the non-custodial parent from the children's lives. Alienation should not be countenanced. Those difficult balances can be achieved only through painstaking exploration of the disparate facts in each relocation case.
Applying the above criteria and principles to the facts of Davis, the court awarded primary physical custody of the two children to the mother and permitted her to relocate to Maryland. The court found the father to be a good and loving parent yet limited in his skills and judgment, while the mother was found to be more competent and credible. At trial, the mother refused to speak ill of the father while the father "was unable to restrain himself from speaking harshly of her social patterns and activities when his attorney opened the door and invited him through." The court further determined, notwithstanding the older child's preference to remain in Connecticut, that all of the activities the boys enjoyed in Connecticut are available in Maryland, where the children have already made friends.
The court determined that the general quality of life of the mother and the children would be improved in Maryland where the family will benefit from a substantial joint income and the flexible work schedules of Mrs. Davis and her fiancee will allow them to be available to the children. As far as visitation to Mr. Davis, the recommendations of the Family Relations Officer were adopted by the mother and provide the father with a base for preserving and fostering the father's parental relationship with the children; specifically, one weekend per month, with extended summer and Easter vacations.
In addition to being significant for providing specific criteria to be applied in a Connecticut relocation case, Davis is also significant for what it does not say. The court does not formerly establish a burden of proof on either party. Rather, the court, in addition to noting the important criteria, applied a general best interest of the child test. Since the courts in Connecticut are likely to apply the best interest of the child test, arguments by either party as to which of them should bear the burden of proof may largely be academic. Yet, it is this very issue which has provided the most controversy in the attempt of some family lawyers to draft a Model Relocation Act.
MODEL RELOCATION ACT
The American Academy of Matrimonial Lawyers (AAML) has prepared a Model Relocation Act it hopes will be used by the courts and state legislatures in developing their own relocation laws. Among other things, the proposed Model Act sets forth detailed notice requirements designed to ensure that both the custodial and non-custodial parent are kept aware of any changes in either the child's or the parents' residence. The Act further defines the specific factors to be considered, and not to be considered, by the court in evaluating relocation cases.
Among the factors to be considered under the terms of the Act are the quality and extent of involvement of the child's relationship with both parents, the developmental needs of the child, the impact of the proposed move on the child, the feasibility of alternative visitation schedules, the child's own preference, the motives of both parents, and whether the general quality of life of the child will be enhanced by the relocation, including the financial, emotional and educational well-being of the child.
The Act further proposes three alternative provisions regarding the burden of proof in relocation cases. The first option would place upon the relocating party the burden of proof that the proposed relocation is made in good faith and in the best interest of the child. The second option would place upon the nonrelocating party the burden of proof that the objection to the move is made in good faith and that relocation is not in the best interest of the child. The third alternative represents a compromise and provides that the relocating parent has the burden of proof that the proposed relocation is made in good faith. If that burden is met, then the burden shifts to the non-relocating parent to demonstrate that the proposed relocation is not in the best interest of the child. Under the terms of the Act, each state legislature would have the choice of selecting which of the above options to be implemented.
The Model Relocation Act developed by the AAML would offer jurisdictions such as Connecticut a model for a statutory solution to the developing issue of relocation. Until the Connecticut legislature passes a statute such as the Model Relocation Act, the bench and bar alike will be guided by Judge Steinberg's recent decision. In Davis, Judge Steinberg has provided a helpful blueprint for family law practitioners to follow in gathering their evidence in relocation cases, and one which the courts can use to evaluate that evidence in reaching their decisions.
(Anyone interested in receiving a copy of the AAML Model Relocation Act may Email Tom Colin at TColin@SandG.com .
i See, e.g., Cal. Fam. Code § 7501; Ill. Stat. Chap. 750 § 5/609; Nev. Rev. Stat. § 125.510; Texas Fam. Code §153.001.
ii See, e.g., Zakar v. Ireland (Middletown 1996) (mother not permitted to relocate with child to California because the advantages of having the mother's new spouse employed there are outweighed by the child's interest in continued bonding with his father); Sideleau v. Sideleau (Bridgeport 1991) (mother permitted to relocate to Long Island where her family lives); Oliveira v. Oliveira (Danbury 1995) (mother with sole custody of five year old not permitted to move with child to Portugal where her family lived); Miggins v. Miggins (Hartford 1996) (relocation of child to Florida with mother due to stepfather's job permitted); Regish v. Gray (Hartford 1994) (custody of child transferred back to mother from grandparents because proposed move by grandparents to Arizona would interfere with mother's visitation rights); Salaman v. Salaman (Waterbury 1986) (move to Indiana by mother with child permitted); Mraz v. Mraz (Bridgeport 1994) (whether children can be removed from Connecticut by custodial parent depends on their best interests).
iii See, e.g., Burgess v. Burgess (Cal. Sup. Ct. 1996); Tropea v. Tropea (N.Y. Ct. Appeals 1996).