Voit v. Voit

In Voit v. Voit, 317 N.J. Super. 103, 116 (Ch. Div. 1998) the divorced parents shared "joint legal and physical custody" of their son. Voit, supra, 317 N.J.Super. at 109, 721 A.2d 317. Specifically, the plaintiff, Dr. Gregory Voit, was to have the child in his care each week from Thursday evening at 6:00 p.m. through Monday morning at 9:00 a.m. Ibid. The defendant, Lisa Voit, was to have their son in her care for the rest of the week. Ibid. Testimony revealed that the parties deviated from this schedule in order to maximize the child's time with each parent. Ibid. When Dr. Voit was offered a position at a teaching hospital in Arizona, he first asked Lisa Voit to relocate with him and their son to Arizona. Id., at 111, 721 A.2d 317. When discussions between the parties ceased, Dr. Voit, through his lawyer, sought the defendant's approval to move with their son. Ibid. Dr. Voit proposed, first, that Lisa Voit relocate with him and their son to Arizona so that the parties could continue their "co-parenting arrangement." Ibid. Alternatively, if the defendant did not wish to relocate to Arizona, Dr. Voit offered to pay for a visitation arrangement in which their son would spend complete summers and all extended school vacations with Lisa Voit. Id., at 111-12, 721 A.2d 317. Dr. Voit filed a notice of motion requesting the right to remove his son to Arizona and a change in the custody agreement so that he would have residential custody of the child during the school year. Voit, 317 N.J. Super. at 121, 721 A.2d 317. The court determined: Under the unique facts of the instant case, where both legal and physical custody is truly shared, the Cooper/Holder analysis, with its concomitant burden on the parent resisting the move out of state to come forward with evidence that a proposed alternative visitation schedule would be impossible or unreasonably burdensome, is inappropriate. While much of the reasoning of those cases applies, the placing of such a burden of proof on the parent resisting the move would be unfair given the totally shared-parenting arrangement that has to date been engaged successfully by the parties herein. Id., at 106, 721 A.2d 317. The court continued that, in a successful shared-parenting case, there is no inequality between the parents' contributions to the child's best interest. Voit, 317 N.J.Super. at 119, 721 A.2d 317. Thus, because "the whole thrust of Cooper and Holder is, where a request for removal is made by a custodial parent, to prioritize the rights of the custodial parent and then to accommodate, as much as possible, the lesser rights of the noncustodial parent," application of a Cooper/Holder analysis in the shared-parenting context "would be both artificial and inappropriate." Ibid. The court interpreted the case as being one involving "first and foremost a request for modification of a joint legal and physical custody agreement." Id., at 121, 721 A.2d 317. Therefore, the court framed the issue as whether there should be a change in custody. Ibid. The court concluded that, in order to determine whether good cause exists to permit removal in a "true joint-parenting case," the standard appropriate to applications for a change in custody, that is the best interests of the child standard, must be applied. Ibid. In Voit, the court found that the plaintiff's reason for her move met the minimal "good faith reason" standard of Holder. Ibid. Also in Voit, the court found that the plaintiff was not requesting to move in order to interfere with the defendant's parental rights. Ibid. Applying the best interests of the child standard, the court concluded that Dr. Voit had not met his burden. Ibid. The court stated that Dr. Voit "utterly failed to show it is in his son's best interest to be in Arizona with him as opposed to in New Jersey with Lisa Voit." Ibid.