D'ONOFRIO V. D'ONOFRIO--NJ Case Law Example

[Brigit]

I need to find this case law for New Jersey. It is the barometer used for when one parent wants to move out of the state...please help me find it!

 

[LegalBeagle]

Actually you will find it very hard to locate the full text as that case is from 1976. Two sites that I know has it are commerical pay sites. Maybe IAAL has it hidden in his list...

 

[LegalBeagle]

Here is something that contains some of the meat of the case in question.

This is why every NCP should start discussion for a new visitation agreement and associated travel costs the moment you find out the CP is leaving the state. If the CP refuses then you can prove to the court that the relationship with the child will suffer and that they are unlikely to be very reasonable once they move...

Take note of the last paragraph ..

Help! My ex is planning to relocate to a remote state with the kids.
In today's mobile society, relocation of the custodial parent to a remote state (or even foreign country) is a fairly common occurrence. Many non-custodial parents live in abject fear that their exes will depart with the kids for parts unknown, and many custodial parents feel they need to make a clean break with their exes or to move to a place where their employment prospects will be brighter. There are no good answers. The national trend is tending toward permitting more freedom in relocation. Most states (including Connecticut) will apply a best-interests test to such a proposed relocation: if the relocation is in the best interest of the children, then the relocation will be permitted. Note that this standard generally means that there must be some demonstrable benefit for the child in the relocation, not just for the custodial parent, and that benefit must outweigh the detriment associated with loss of contact with the non-custodial parent.

For example, New York, until recently, all but forbade custodial relocation unless the custodial parent could make a showing of "exceptional circumstances." That standard was greatly liberalized last year, when the Court of Appeals held that,

...in all cases, the courts should be free to consider and give appropriate weight to all of the factors that may be relevant to the determination. These factors include, but are certainly not limited to each parent's reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the child's future contact with the non-custodial parent, the degree to which the custodial parent's and child's life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements. In the end, it is for the court to determine, based on all of the proof, whether it has been established by a preponderance of the evidence that a proposed relocation would serve the child's best interests.

Tropea v. Tropea, 87 N.Y.2d 727, 740-41, 665 N.E.2d 145, 642 N.Y.S.2d 575 (1996).


There is no Connecticut statute governing relocation cases (although one is proposed by a leading matrimonial lawyers' group), and until recently there was no appellate-court guidance in Connecticut.

Recently, however, lower Connecticut courts, relying on a New Jersey decision in D'Onofrio v. D'Onofrio, 144 N.J.Super. 200, 206, 365 A.2d 27, aff'd, 144 N.J.Super. 352, 365 A.2d 716 (App. Div. 1976), articulated the following criteria in deciding whether the custodial parent should be permitted to remove the child to another jurisdiction: (1) advantages of the move in terms of its likely capacity to improve the general quality of life for the custodial parent and child; (2) motivation or good faith of the custodial parent in desiring relocation, specifically, if interference in noncustodial parent's visitation or relationship is a factor in the move; (3) likelihood of custodial parent to comply with visitation orders necessitated by relocation; (4) good faith or motivation of noncustodial parent in resisting relocation; and (5) whether, if relocation is allowed, there is a realistic opportunity for a visitation schedule that will provide an adequate basis for preserving and fostering the parental relationship with the non-custodial parent.

The Connecticut Appellate Court expressly approved these factors in Ireland v. Ireland, 45 Conn.App. 423, 696 A.2d 1016 (1997), cert. granted, 243 Conn. 905, 701 A.2d 330 (1997), and held that the custodial parent seeking relocation bears the burden of proof on these factors. The states that have now adopted the D'Onofrio factors are Arkansas, Florida, Massachusetts, Michigan, Nevada, North Carolina, South Dakota, Tennessee, Vermont and Wyoming.

On August 18, 1998, the Connecticut Supreme Court reversed the Appellate Court decision in Ireland on two grounds: first, that the trial court had improperly placed the burden of proof on the custodial parent by requiring her to show the relocation to be in the child's best interest (the burden should properly be on the non-custodial parent to show the contrary); and second, the New York Tropea factors, not the New Jersey D'Onofrio factors, should be considered in making the determination. The effect of this decision is that Connecticut now permits the trial judge to take all relevant factors into account, and the "default setting" favors the custodial parent.

Often relocation will be permitted conditioned on changes in visitation or some financial consideration to the non-custodial parent to offset the increased costs of contact with the children. As in all custody disputes, the results of a relocation matter are heavily fact-dependent, and the outcome is rarely a foregone conclusion.



[This message has been edited by LegalBeagle (edited August 31, 2000).]

 

[Brigit]

Thank you, thank you, thank you, O Great Legal Beagle....