Holder v. Polanski

In Holder v. Polanski, 111 N.J. 344, 544 A.2d 852 (1988), the Supreme Court modified the two-prong analysis previously established in Cooper v. Cooper, 99 N.J. 42, 56, 491 A.2d 606 (1984). It replaced the first prong which required that a custodial parent show a real advantage to the move, with the proviso that any good faith reason to move will suffice. The Court, however, retained the second prong which required that the move would be permitted only if it did not interfere with the best interest of the child or substantially change the visitation rights of the noncustodial parent. Levine v. Bacon 152 N.J. 436, 439-40, 705 A.2d 1204 (1998). The elimination of the need to show a real advantage was based upon the realization of the disparate treatment of custodial and noncustodial parents. Holder, supra, 111 N.J. at 349, 544 A.2d 852. The Court observed that an award of custody unfairly inhibits the custodial parent from moving elsewhere, while giving the noncustodial parent the freedom to move about the country without restriction. Ibid. Thus, a trial judge's first inquiry is the motivation for the move. Any sincere good-faith reason for the move is sufficient. Id. at 353, 544 A.2d 852. In order to reach a determination that there is an absence of good faith on the part of the custodial parent, there necessarily must be a finding that the motivation behind the move is inspired by something other than good faith. For example, as stated in Holder, "if the court should find that the purpose of the move is to thwart the noncustodial parent's visitation rights, that obviously will not satisfy the test." Ibid. The Court modified the Cooper standard, making it easier for a custodial parent to prevail in an application for removal. In Holder, the Court followed the custodial/noncustodial distinction of Cooper, but modified the burden on the moving parent by eliminating the "real advantage" requirement for removal and replacing it with the less burdensome "good faith reason" standard. Holder, supra, 111 N.J. at 352-53, 544 A.2d 852. The Holder Court "left the burden on the noncustodial parent to show that no alternative visitation plan could be established that would adequately protect the relationship between the child and the noncustodial parent." The Court made clear: Not every change in a visitation schedule will prejudice the rights of the noncustodial parent, particularly if the noncustodial parent has not exercised them before the custodial parent seeks to move from the state. If the move will not substantially change the visitation rights, then the court should determine whether the move would be inimical to the best interests of the children. Holder, supra, 111 N.J. at 353, 544 A.2d 852. Thus, in Holder, the burden on the custodial parent to justify removal was lessened, but the burden on the noncustodial parent was retained and intensified. In Holder the Court stated: If . . . the move will require substantial changes in the visitation schedule, proofs concerning the prospective advantages of the move, the integrity of the motives of the party, and the development of a reasonable visitation schedule remain important. The emphasis, however, should not be on whether the children or the custodial parent will benefit from the move, but on whether the children will suffer from it. Motives are relevant, but if the custodial parent is acting in good faith and not to frustrate the noncustodial parent's visitation rights, that should suffice. Maintenance of a reasonable visitation schedule by the noncustodial parent remains a critical concern, but in our mobile society, it may be possible to honor that schedule and still recognize the right of a custodial parent to move. In resolving the tension between a custodial parent's right to move and a noncustodial parent's visitation rights, the beacon remains the best interests of the children. Holder, 111 N.J. at 353-54. In Holder, supra, 111 N.J. at 353, 544 A.2d 852, the Court stressed that, where there is a substantial change in the visitation schedule, the prospective advantage of the move, the integrity of the party's motives, and the development of a reasonable visitation schedule are factors that should be considered in the determination of the second prong, whether the child will suffer from the move. The Court emphasized: "motives are relevant, but if the custodial parent is acting in good faith and not to frustrate the noncustodial parent's visitation rights, that should suffice." Ibid. In our modern mobile society it may be possible to honor a visitation schedule and still recognize a custodial parent's right to move. In deciding between the two "the beacon remains the best interests of the children." Id. at 354, 544 A.2d 852.