MARIA SEGARRA v. ROBERTO SOTO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3672-04T23672-04T2

MARIA SEGARRA,

Plaintiff-Appellant,

v.

ROBERTO SOTO,

Defendant-Respondent.

_______________________________________

 

Argued November 30, 2005 - Decided January 27, 2006

Before Judges Winkelstein and Sabatino.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, FM-04-9-05.

Robert M. Vreeland argued the cause for appellant.

Craig B. Sobel argued the cause for respondent.

PER CURIAM

Plaintiff Maria Segarra appeals the Family Part's order granting defendant Roberto Soto permission to relocate the parties' two minor children with defendant to Puerto Rico. The order in question was stayed pending review by this court.

After considering the briefs and oral arguments of counsel, we conclude that the record in its present state is insufficient to support the requested relocation of the children, one of whom is autistic and multiply disabled, under the controlling standards of Baures v. Lewis, 167 N.J. 91 (2001). Accordingly, we vacate the order under review and remand for further proceedings in the Family Part.

I.

The factual history regarding the parties and the custodial arrangements for their children, as it emerged in the four-day relocation trial, is both contentious and disruptive. Plaintiff and defendant were married on December 23, 1994 in Philadelphia, Pennsylvania. Both parties are originally from Puerto Rico and moved to Philadelphia in 1993.

Two children were born of the parties' relationship. Their older child is P.S., who was born prematurely on December 23, 1993. P.S. is autistic and multiply disabled, a diagnosis the parties do not dispute. The younger child, L.M.S., was born on March 5, 1995. Although L.M.S. has been classified with impairments and has vision problems that require ongoing medical attention, particularly myopia and astigmatism, she does not have special needs that are as pronounced as those of her older sister P.S. At the time of the relocation order that is the subject of this appeal, P.S. was twelve years of age and L.M.S. was age ten.

The children's mother, plaintiff Segarra, has a bachelor's degree in political science and three years of post graduate studies in counseling and school guidance. Since February 2004, Segarra has been certified as a home health aide by the New Jersey Board of Nursing, and she has worked intermittently in that capacity. The father, defendant Soto, has been previously employed full-time as a customer service representative in the health care field and has also worked part-time as a karate instructor. At the time of the relocation hearings, Soto was pursuing an associate's degree in computer graphics while continuing to earn money as a karate instructor.

In 1996, Segarra was first diagnosed with a psychotic disorder as the result of her hearing imaginary voices. She was admitted to the Philadelphia Institute, was prescribed medication, and released after three days.

Over time the parties' marriage disintegrated. Soto developed a relationship with another woman, Meredith Rosenberg. The parties had arguments over that relationship and about financial matters.

By June 1998 the parties' domestic conflicts fomented to a point that Segarra obtained a Final Protection Order against Soto from the Pennsylvania Court of Common Pleas in Philadelphia. The order was predicated upon alleged threats by Soto that he would kill Segarra. The order prohibited Soto from having contact with his wife and two daughters, and awarded Segarra temporary physical and legal custody of the children.

During the summer of 1998 Segarra and the children resided in New Jersey at a battered women's shelter and with friends. The record indicates that the Division of Youth and Family Services (DYFS) investigated an allegation that Segarra had inappropriately grabbed the neck of one of her daughters while living at the shelter. The investigation did not lead to any further DYFS action, and Segarra contended that the allegation was mistaken.

In September 1998, Segarra and the children moved into an apartment in Perth Amboy, New Jersey with Arcelia Acevedo, Segarra's biological mother. The record indicates that Acevedo is the sole blood relative of Segarra living in New Jersey. According to her trial testimony, in 1998 or 1999 Segarra was hospitalized at the Center for Living at Raritan Bay Medical Center in Perth Amboy because she was feeling depressed and again hearing voices in her head. The voices that she heard repeatedly chanted "thank you and I love you." This second hospitalization led DYFS to intervene and place the children in the custody of Acevedo, the maternal grandmother. There was also a suggestion during Segarra's cross-examination, although not documented further in this record, that the older child P.S. had suffered from dehydration and gastritis while Segarra was in the Perth Amboy hospital. There is no indication in the record that this DYFS involvement, transferring physical custody of the children to Acevedo, resulted in the filing of any abuse or neglect action in the Family Part.

While living with the children and her own mother in Perth Amboy, Segarra participated with the Perth Amboy School District in developing Individual Education Programs (IEPs) for both girls. Segarra testified at trial that she was very satisfied with the educational services that the Perth Amboy School District had provided.

Meanwhile, the legal conflicts between Segarra and Soto reignited. In January 1999 Segarra obtained a Temporary Restraining Order under docket FV-12-001998-99 in the Middlesex County Family Part, granting full faith and credit to the Pennsylvania order of protection, and thus continuing the prohibition on Soto having contact with his wife and daughters. Later that year Soto filed an application in Philadelphia, in the Court of Common Pleas, seeking either partial custody of the children or visitation. That Pennsylvania action was dismissed on jurisdictional grounds, given the residency of the children in New Jersey.

Segarra continued to litigate against Soto in the New Jersey courts. On June 26, 2000, Segarra obtained an order (on the non-dissolution docket) in Middlesex County under FD-12-1998-00F, again reaffirming her sole custody of the children. She also filed a complaint for divorce in the Middlesex County Family Part under Docket No. FM-12-336-01E. On July 2, 2002, a Final Judgment of Divorce (FJD) under that matrimonial docket was issued, with Soto in default. The FJD recited that Segarra would have sole custody of the parties' minor children.

According to Soto's testimony in the relocation trial, he was not placed on notice of, nor did he attend, any of the proceedings brought by Segarra against him in the Pennsylvania and New Jersey courts until early 2003. He also alleged that from May 1998 through March 2003 he was prevented by Segarra from seeing the children. This latter point was not contested by Segarra, who admitted in her cross-examination that during that five-year period she did not let Soto or his relatives have physical contact with their daughters or share with him the girls' educational plans or the names of their physicians.

Following the parties' 2002 divorce, Soto married Meredith Rosenberg, and moved with his new spouse from Philadelphia to Cherry Hill, New Jersey. Soto testified that he then enrolled in Camden County College to pursue an associate degree in computer graphics and continued his work as a karate instructor.

In February 2003, Soto brought an application for parenting time in the Family Part, which apparently was granted ex parte on a preliminary basis. The resulting order and the associated visitation schedule were not submitted as part of this appellate record. Upon learning of Soto's pending visitation application, Segarra filed her own Order to Show Cause in the Family Part in Middlesex County, under docket FD-12-1999-00F. This resulted in an interim order that temporarily nullified the order for parenting time procured by Soto. On the return date, March 6, 2003, the Family Part issued a parenting time order granting Soto supervised visitation with the children every Sunday for four hours, with the transfers to take place at the Perth Amboy Police Department. As of April 6, 2003, Soto's weekly visits with his daughters extended to seven hours.

In May 2003, allegations were made to DYFS that Segarra had allegedly said that the children were "possessed." DYFS investigated these allegations and interviewed Segarra. In response, Segarra admitted to DYFS that she was concerned about the effects of Soto's visitation with the girls and that she had asked for prayers to be said for them, but she denied any pejorative aspects of her conduct. By this point, according to Segarra's trial testimony, she had discontinued her regular medications for depression and instead was pursuing treatment with a holistic doctor. Her mental health continued to destabilize, and Segarra was soon readmitted to the hospital for a third time.

As a result of their investigation of these circumstances, DYFS transferred physical custody of the children to Soto. The children have primarily resided with him since that time. Soto enrolled both girls in the Cherry Hill School District, and both children have been pursuing IEP plans developed by that district. According to Soto's testimony, he and Ms. Rosenberg separated in or about May 2003 after the children were placed with him.

In June 2003, Soto took the children to Puerto Rico to stay with his extended family there for the summer. Although Soto later contended at the relocation trial that he did so with DYFS' permission, the record indicates that in August 2003, DYFS filed a civil action for child abuse and neglect against both Soto and Segarra in Middlesex County under Docket FN-12-169-03. That DYFS application resulted in an order issued on August 6, 2003, requiring Soto to return the children to New Jersey, placing the children in the custody of DYFS with physical custody remaining with Soto, and compelling both parents to undergo psychiatric evaluations.

Pursuant to the August 6, 2003 Order, a psychiatric evaluation of Segarra was performed by Alexander Iofin, M.D., a court-appointed clinical psychiatrist. In his October 2003 report, Dr. Iofin diagnosed Segarra as having a "schizoaffective disorder." He defined that disorder as "a chronic neurodegenerative condition that has a chronic course." Dr. Iofin further stated that, "[i]ndividuals with this type of condition will have future deterioration in the level of functioning, with the possibility of having significant Affective problems, as well as significant Psychotic breaks."

The Iofin report detailed two prospective impacts upon children of a parent's disorder of this kind. First, it noted that the delusional aspects of the illness create the risk that a parent may harm a child when actually believing she was acting in their best interests. Second, it noted that children who live in the same household with a parent who has delusional and psychotic ideation could accept those delusions as reality, thereby creating a shared psychotic disorder for each child.

Based on his October 2003 assessment of Segarra, Dr. Iofin opined as follows:

I would be reluctant to consider Ms. Segarra as a reasonable mother, even if she is in compliance with her psychotropic medication regimen, secondary to the possibility of having breakthrough psychotic episodes, even if she is treated. I would recommend to explore the possibility of placement of the children with extended family members, including the biological father, and I would not oppose supervised visitations between Ms. Segarra and her children, as long as she is in full compliance with her treatment recommendations.

Having received Dr. Iofen's report spotlighting these concerns about Segarra's psychotic tendencies, the Family Part in Middlesex County issued two orders on January 21, 2004. Through a Custody and Services Order, the court granted physical and legal custody of the children to Soto, with supervised visitation for Segarra to be arranged at Soto's discretion. In a separate order that same day, the court dismissed DYFS' complaint for abuse and neglect, and directed that the children remain in Soto's custody.

On March 2, 2004, Segarra filed an Order to Show Cause in Middlesex County seeking to prevent Soto from bringing the minor children to Puerto Rico once again. Significantly, in responding to the Order to Show Cause, Soto represented that he did not intend at that time to relocate the children to Puerto Rico. Thus, the Family Part deemed Segarra's emergent application moot, and issued a prophylactic order prohibiting either party from removing the children from the state of New Jersey without leave of court.

Five months later, in September 2004, Soto filed a motion in the Family Part in Camden County, seeking permission to relocate the children with him to Puerto Rico. Segarra opposed the motion and cross-moved for primary residential custody, and the matter was set down for plenary hearing.

The matter was tried over four non-consecutive days in October and December 2004. Both Soto and Segarra were represented at trial by counsel. In addition to the parties' testimony, the court heard testimony from Michael Tompkins (a character witness for Soto) and from Segarra's expert witness, Oscar Sandoval, M.D., a psychiatrist. Additionally, the trial judge interviewed both P.S. and L.M.S. in chambers regarding the proposed move to Puerto Rico, although no transcript of those interviews was furnished with the appellate record.

In his trial testimony in support of his application, Soto contended that he wished to relocate the children to Puerto Rico for several reasons. He noted that he was about to complete his associate's degree at Camden County College in December 2004. He described an opportunity in Puerto Rico to work as a regional director of a karate program. He also alluded to plans to pursue his own freelance graphics design business.

Apart from these employment prospects, Soto also noted that he had an extended network of relatives in Puerto Rico, including his parents and a sister, who could assist him in raising his daughters. In that vein, Soto testified that he and the children would live initially with his sister and her husband in their four- bedroom house in Sabana Grande. He also professed that the girls' educational needs would be adequately addressed in Puerto Rico, and that he had spoken by telephone with school officials there to confirm the availability of such services. Soto further represented that the children's medical needs would be cared for in Puerto Rico by the same physician who had treated him as a child.

Tompkins, a captain in a local police department and a friend of Soto, testified briefly. He asserted that Soto had capably raised the children since obtaining custody in 2003, interacting well with them and treating them in a very caring manner.

Segarra testified in opposition to the removal to Puerto Rico, and in support of her own cross-application to regain primary residential custody of the children. She stated that she was living with her mother in Perth Amboy, that she had completed her certification as a home health provider, and that she had begun to work, albeit sporatically, in that field. She insisted that she was a fit parent, and that she had remained faithfully on her prescribed medications and had not had any relapse in her mental health since her last hospitalization in 2003.

Segarra also emphasized in her testimony that Soto had been uncooperative with her in arranging and accommodating her parenting time with the children. She recounted instances where, accompanied by her mother, she would take trains and buses from Perth Amboy to Cherry Hill to visit with the children, only to find that they were unavailable. On occasions, Soto allegedly would not respond to her telephone calls and allow her to speak with the children.

Segarra's expert witness, Dr. Sandoval, offered at trial a prognosis for Segarra's ability to deal with her mental illness that was more optimistic than the earlier findings of Dr. Iofin from 2003. In particular, Dr. Sandoval highlighted the difference between schizoaffective disorder and "regular" schizophrenia. He noted that a diagnosis of schizoaffective disorder generally pertains to patients who are high functioning, verses a diagnosis of schizophrenia, which indicates a more chronic condition. Dr. Sandoval further opined that Segarra's diagnosis with schizoaffective disorder did not preclude her from being a fit parent. He added that the medication that Segarra takes for her mental condition does not impair her cognitive functions or her ability to parent. Based on his examination of Segarra and in recognition of her self-awareness and insight regarding her mental illness, Dr. Sandoval concluded that Segarra did not pose a danger to her children.

Although there is no transcript before us of the trial judge's interviews with the minor children, the judge did briefly summarize the substance of those interviews. His perception was that, although both girls have limitations, they were suited to moving to Puerto Rico, and that, if both parents worked to help them flourish, they would "do fine."

On January 13, 2005, the trial court rendered an oral opinion granting Soto's motion for relocation. The trial court found that plaintiff Soto had satisfied both prongs of the removal standards under Baures, supra, 167 N.J. at 91. As to the first prong of Baures, the court found that Soto's request for the move was made in good faith, given his employment opportunities in Puerto Rico and the extended family members residing there. On the second Baures prong, the trial court concluded that the relocation would not be inimical to the children's best interests, provided that the mother's rights to visitation and contact are accommodated and that the girls' special educational needs are addressed in Puerto Rico as represented by the father.

The trial judge also denied Segarra's competing application for custody, noting that he had "grave concerns" about the safety of the children if they were left with Segarra, given her history of mental illness. He also expressed concerns in his oral decision about Segarra's demeanor on the witness stand, finding that at times she paused a long time before responding to questions, and that she had a faulty memory for key facts. This suggested to the trial judge that Segarra "has an extraordinarily poor filter for data acquisition and processing."

Upon issuing his oral opinion, the trial judge directed counsel to finalize a visitation schedule for the children to have parenting time with their mother, and requested that Segarra's attorney submit an order reflecting the trial court's decision and the agreed-upon visitation schedule. This was accomplished by counsel over the next few weeks.

On February 18, 2005, the trial court issued its final order permitting Soto to relocate the minor children to Puerto Rico. The final order incorporated the visitation schedule agreed to by the parties, which read in pertinent part:

Defendant Roberto Soto shall have the sole [and] primary custody of the minor children. Plaintiff, Maria Seg[a]rra shall have physical supervised visitation of the children with her Mother, Ms. Arcelia Acevedo, in accordance with the prior orders and below visitation schedule. The cost for travel and/or to facilitat[e] this visitation schedule shall be split evenly between Mother Ms. Seg[a]rra and Father Mr. Soto. Mr. Roberto Soto agrees to bring the children, subject to their school calendar/schedule back to New Jersey at least twice (2) a year for an extended time period over a one week duration[.] In June 2005, Mr. Soto will bring the girls back to New Jersey to spend time with [Segarra] and her mother [Acevedo]. The stay shall be for ten days. [Soto] during Christmas break December/January (coincides with P.S.'s B-day) will bring the girls back to New Jersey to spend time with [Segarra] and [Acevedo]. The stay shall be for eight days. Upon thirty day[s] (30) prior notice, [Soto] shall make available to [Segarra] supervised visits in Puerto Rico any time [Segarra] is in Puerto Rico. [Soto] will share equally (50%) in the expense of [Segarra's] airfare to travel to Puerto Rico for her first two trips to Puerto Rico in any year. In regards to the supervisor, [Acevedo] or some other acceptable supervisor living outside Puerto Rico, [Segarra] will be responsible 100% for any one or any companion that she chooses to accompany her to Puerto Rico for the supervised visitation should she not present someone living in Puerto Rico. [Segarra] is free to travel any time at her own cost to visit the children in Puerto Rico provided she has supervised visitation plans.

The order also provided for telephone contact between Segarra and her daughters for no longer than ten minutes every other day between 6:00 p.m. and 8:00 p.m., at Soto's expense. Segarra also was permitted to communicate with the girls by telephone at any other time she wants at her own cost.

The trial court also required that Soto provide the court and opposing counsel with interim reports regarding his job search status, the children's special education and school placement in Puerto Rico, their attending teachers and their medical treatment status. The first such reports were due no later than six months after the relocation, with a second set of such reports to be served after another six-month interval.

Segarra timely moved to stay the relocation order. After her application was initially denied by the trial court, she filed an emergent application with this court for a stay, which we granted on March 17, 2005. Soto then moved to this court for reconsideration of the stay and to dismiss the appeal, an application that we denied. The parties then fully briefed the matter, and we heard oral argument. In the meantime, we presume that the children have remained in New Jersey in the primary custodial care of their father.

II.

The applicable legal standards for the relocation of children by their primary custodial parent are clearly set forth in Baures v. Lewis, supra, 167 N.J. at 97. As a threshold matter, Baures, supra, 167 N.J. at 116, requires the court to determine that the parent seeking to relocate is indeed the primary custodian, and that the case does not involve a situation of equivalent "shared parenting." Cf. O`Connor v. O'Connor, 349 N.J. Super. 381, 399-400 (App. Div. 2002)(citing Mamolen v. Mamolen, 345 N.J. Super. 493 (App. Div. 2002)). That threshold question is easily answered here. Although the children were in the primary custody of their mother for most of their lives, their father, defendant Soto, assumed primary custody of the children as the result of DYFS' intervention in May 2003. Since that time the mother, plaintiff Segarra, has had only limited access to the children by way of supervised visitation. Thus, the Baures removal test applies.

As a further threshold issue, we shall not disturb on this record the trial judge's denial of Segarra's application to transfer primary custody of the children to her at this time. Although, as the trial judge himself recognized, Segarra has made great strides in dealing with her mental illness, remaining on her medication and obtaining her certification as a home health aide, we share the trial court's concern about exposing the children to potential risk in the unsupervised care of their mother who has been hospitalized three times with psychotic delusions. On the other hand, the children have been fed, clothed, housed and schooled capably in their father's custody in Cherry Hill since the children were suddenly placed with him in May 2003.

We defer to the trial court's assessment that the present best interests of the children, see N.J.S.A. 9:2-4, would not be served by a change in custody, as substantial credible evidence in the record supports that assessment. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). We therefore deny the cross-appeal by Segarra and affirm the custody determination, without prejudice, of course, to a renewed custody application by the mother if circumstances change. Todd v. Sheridan, 268 N.J. Super. 387, 398 (App. Div. 1993).

As Baures teaches, however, primary custody alone does not automatically carry with it the right to remove children from the State. The Supreme Court in Baures fashioned a detailed legal test, a "hybrid scheme" that recognizes the identity of the interests of the custodial parent of the child and accords particular respect to the custodial parent's right to seek happiness and fulfillment. At the same time, the Baures test emphasizes the importance of the noncustodial parent's relationship with the child by guaranteeing regular communication and contact of a nature and quality to sustain the relationship. Baures, 167 N.J. at 97.

More specifically, the moving party under Baures bears the two-pronged burden of providing prima facie proof that there (1) is a good faith reason for the move, and (2) that the move will not be inimical to child's interests. Ibid. The movant should include within that prima facie case a visitation proposal. Id. at 118. However, in Cooper v. Cooper, 99 N.J. 42, 57-58 (1984), the Supreme Court previously noted that it was not necessary to maintain the same pre-removal visitation schedule, where a reasonable alternative visitation scheme is available and the advantages of the move are substantial.

Once a prima facie case is established under Baures, the burden is upon the noncustodial parent to produce evidence opposing the move, as being either not in good faith or inimical to the child's interests. Baures, supra, 167 N.J. at 119. Where visitation is an issue, the burden is on the noncustodial parent to produce evidence, not just that visitation will change, but that such a change will negatively affect the child. Holder v. Polanski, 111 N.J. 344, 352 (1998).

As articulated in Baures, a court should look to the following factors relevant to the movant's burden of proving good faith and proving that the move will not be inimical to the child's interests:

(1) the reasons given for the move;

(2) the reasons given for the opposition;

(3) the past history of dealings between the parties insofar as it bears on the reasons advanced by both parties for supporting and opposing the move;

(4) whether the child will receive educational, health and leisure opportunities at least equal to what is available here;

(5) any special needs or talents of the child that require accommodation and whether such accommodation or its equivalent is available in the new location;

(6) whether a visitation and communication schedule can be developed that will allow the noncustodial parent to maintain a full and continuous relationship with the child;

(7) the likelihood that the custodial parent will continue to foster the child's relationship with the noncustodial parent if the move is allowed;

(8) the effect of the move on extended family relationships here and in the new location;

(9) if the child is of age, his or her preference;

(10) whether the child is entering his or her senior year in high school at which point he or she should generally not be moved until graduation without his or her consent;

(11) whether the noncustodial parent has the ability to relocate;

(12) any other factor bearing on the child's interest.

[Baures, supra, 167 N.J. at 116-17 (original spacing altered to make it more readable).]

Additionally, Baures emphasizes the importance of mutual efforts to develop an alternative visitation scheme that can bridge the physical divide between the noncustodial parent and the child. Id.

As to the first prong of Baures, we shall not upset the trial court's finding that defendant Soto has articulated sufficient good faith reasons for relocating the children to his native Puerto Rico. He has identified employment opportunities, in the short term as regional director of a karate instruction program, and in the long term in the graphic arts field, that provide legitimate reasons for leaving the Cherry Hill, New Jersey area upon the completion of his associate's degree.

Additionally, the presence of extended family in Puerto Rico offer potential advantages to the children, in providing them with love, guidance and companionship. The only relative of either parent located in New Jersey is Segarra's biological mother, with Segarra's other relatives all living in Puerto Rico or abroad. As case law instructs, the presence of extended family has been recognized as a good faith basis for relocation. Id. at 118. Given these circumstances, we do not overturn the trial judge's overall assessment that Soto possesses legitimate reasons to relocate with the children from New Jersey.

Nevertheless, we are equally persuaded that the present record is insufficient to support the second prong of Baures, i.e., that the relocation would not be inimical to the best interests of these two children, who have special needs and an unfortunate disruptive history of warring and uncooperative parents. We believe that the present record leaves far too many open questions about the children's living, schooling and medical arrangements in Puerto Rico. We also believe that the trial proofs create serious doubts about whether the mother's relationship with the children will be feasibly and constructively maintained from such a great distance in a cooperative fashion.

On this critical point of the children's best interests, we begin with the observation that no expert met with these children and professionally evaluated the likely impact of moving them to Puerto Rico. Although we do not hold that such expert opinion is required in every relocation case, we note that the present case involves especially sensitive factors, with two special-needs children, a mother with a history of mental illness, a father who has been the subject of domestic violence restraining orders, and periodic investigations by DYFS.

The only expert testimony presented at trial came from the mother's treating psychiatrist, Dr. Sandoval, who had not interviewed the children. The prior report of Dr. Iofin from 2003, which had been appended to the May 2003 custody order in the court's file, was not buttressed with any live testimony. No expert conducted any observations of the children's interactions with their parents. No expert conducted any evaluation of Soto, even though an assessment of the father had been contemplated when DYFS brought its action in 2003.

We realize that the parties in this case are of limited financial means and may not have had the resources to retain an expert, or to share the costs of an expert appointed by the court pursuant to R. 5:3-3. We do not hold that such an expert was essential to this case. However, the absence of such expert support in the record for the children's removal to Puerto Rico fortifies our independent concerns about the impact of such a move on these adolescents with special needs to an island where they have only briefly resided during summer vacation.

In noting the absence of such expert testimony here, we do not wish to denigrate the trial judge's efforts in conducting his own interviews of the children in chambers pursuant to R. 5:8-6. The information and perceptions derived from such child interviews are often extremely helpful to the court. However, given the special needs of these children, particularly the autistic child P.S., we suggest that the record could have been substantially enhanced by having these children also interviewed by a psychologist or other expert, with appropriate testing conducted, and perhaps observed by the expert interacting with each of their parents.

We also note that the record is incomplete and somewhat vague about the actual living and caretaking arrangements planned for the children in Puerto Rico. Although Soto testified that his sister and her retired husband would readily lodge him and the children in their four-bedroom home, there was no corroborating proof of those arrangements, either in a certification from those relatives that could have been filed with Soto's motion papers, or in trial or deposition testimony. It is unclear from the record how long the children were expected to reside with their aunt and uncle, what their father's work hours would be, whether he would be working in the evening and, if so, what night-time supervision the children would receive at home. It is further unclear whether his expected position as the regional director of a karate program would involve travel, and, if so, how the girls would be cared for in his absence. These details are not all vital to permit relocation, but their omission from the record increases our concerns about the children's best interests.

Most importantly, we are troubled by the sparseness of the record in confirming that the special needs of P.S., who is autistic and multiply disabled, and of her younger sister L.M.S. will be adequately addressed by the school system in Sabana Grande. Both children have received IEP programs at school designed to meet their unique educational and health challenges, first in Perth Amboy when they resided with their mother and thereafter in Cherry Hill when they were placed with their father.

Although Soto's counsel attempted to offer at trial a packet of letters from personnel in the Cherry Hill School District, that attempt was met with a hearsay objection, which was sustained. Soto did not bring into court the school social worker or any other live witness to verify that, one, the children's educational progress in their IEPs would not be hindered by another move to a distant place, and, two, that the Cherry Hill School District had indeed planned an appropriate transition for the IEPs to be replicated and continued at their new school in Sabana Grande, Puerto Rico.

Nor did Soto present any corroborating proofs from school officials in Sabana Grande confirming that the school district there was equipped to continue the IEPs and to address the special needs of these children. The record also does not speak to how the impact of moving more than a thousand miles away from their mother in New Jersey might affect the children's abilities to focus on their schoolwork and to pursue their educational goals.

In highlighting these omissions, we do not presume that a school district in Puerto Rico would be incapable of providing equivalent services to these children, any more than we would presume that a school district in Pennsylvania or in some other state on the mainland United States would lack that expertise. Regardless of the geographic destination, the school district receiving these children demonstrably must be able to afford P.S. and L.M.S. with "at least equal" educational opportunities and "equivalent" accommodations of their special needs. See Baures, supra, 167 N.J. at 116. The record here on that score depends entirely upon Soto's lay assurances that the schools in Puerto Rico were ready and able to provide such services.

We have similar, albeit lesser, concerns about the adequacy of the record concerning the equivalency of the medical care available for the children in or around Sabana Grande, Puerto Rico. Again, there are no corroborating proofs supplied other than Soto's representations to the court that doctors in Sabana Grande would provide the children with the services they need.

We are mindful that the trial judge did require, as a condition of removal, that the court and opposing counsel be furnished with reports after a six-month interval confirming that the educational and medical needs of the children were being met. Although such after-the-fact reports would be beneficial as a matter of implementation, we believe that the record should have also contained more up-front assurances that the educational and medical plans for the children in Puerto Rico were consistent with their best interests before the relocation was permitted.

We also have grave doubts about the efficacy of the visitation and communication plan ratified by the trial court, and whether the plan will fulfill the requirement of Baures for a schedule that will "allow the noncustodial parent to maintain a full and continuous relationship with the child[ren]." Baures, supra, 167 N.J. at 116-17.

The plan stipulated to by counsel after the trial, negotiated at the court's direction, was not explored in any testimony as to its advantages and/or disadvantages. It contemplates that the children will visit their mother in New Jersey for two periods of over one week each. It also contemplates that the mother would have the right to visit with the children in Puerto Rico so long as she is accompanied on the trip by an appropriate supervisor or designates one in Puerto Rico. Although Soto would share in some of the costs of Segarra's travel to Puerto Rico for that purpose, Segarra would be fully responsible for the costs of the supervisor.

Given that Segarra is not regularly employed and is of limited financial means, we question whether her right of visitation in Puerto Rico with a supervisor will be frequently exercised. The record does not address the anticipated travel costs to and from New Jersey and Puerto Rico, and whether the parties will be able to afford such extensive trips with any frequency.

The record does not indicate whether such infrequent physical contact would be detrimental to these children, especially the autistic child who may require regularity and predictability in her daily routines and parental interactions because of her disabilities. Again, these important subjects could have been explored through competent expert testimony, but were not.

We also have considerable doubts about whether the telephone contact with the mother set forth in the trial court's order will be implemented successfully. As the trial judge himself recognized, the parties have mutually exhibited in the past a lack of cooperation in allowing the other parent fair access to the children. Specifically, the judge found that the visitation schedule within New Jersey "hasn't worked," "both because of [Ms.] Segarra's frustration and unwillingness to communicate with Mr. Soto . . . and Mr. Soto's frustration and inability to communicate with [Ms.] Segarra." He noted that "[t]he children suffer from this," cautioning that the children will "only do fine if each parent works to help them flourish."

In light of the parties' checkered history, we suspect that a distant removal of the children off the mainland of the United States will only compound their problems of communication. We do not foreclose such arrangements, but simply note that the record should contain more support for the feasibility of the arrangements before the children are sent off to Puerto Rico and deprived of more regular contact with their mother in New Jersey.

In sum, we find it necessary to vacate the trial court's order permitting the removal of the children, without prejudice to the father renewing and supplementing his application, if he so chooses, before the trial court with additional proofs that satisfy the concerns that we have underscored in this opinion. We also deny the mother's cross-appeal for custody, again without prejudice to a renewed application by her for such relief, or for the relaxation of the conditions of supervised visitation, based upon a sufficient change in circumstances. We do not retain jurisdiction.

Affirmed in part, vacated in part, and remanded.

 

Plaintiff's psychiatrist Dr. Sandoval offered a more benign assessment of Segarra's affect, attributing her reticent demeanor on the stand to her anxiety about testifying coupled with the fact that English is Segarra's second language. On the latter point, we do note that Segarra's counsel did not request a Spanish interpreter to assist his client in her testimony.

We do not construe Segarra's counsel's assent to the visitation plan, provided after the court had already rejected his client's opposition to the relocation and had directed counsel to negotiate terms of visitation, as a waiver of her right to challenge on this appeal the merits of the relocation.

(continued)

(continued)

28

A-3672-04T2

January 27, 2006