D.A. v. S.J.-A.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1840-06T11840-06T1

D.A.,

Plaintiff-Respondent,

v.

S.J.-A.,

Defendant-Appellant.

_________________________________

 

Submitted August 7, 2007 - Decided August 14, 2007

Before Judges Sabatino and Baxter.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, FM-01-582-05B.

S.J.-A., appellant pro se.

Hankin Sandman & Palladino, attorneys for respondent (Amy R. Weintrob, on the brief).

PER CURIAM

Defendant S.J.-A. ("the mother") appeals an October 18, 2006 order of the Family Part allowing plaintiff D.A. ("the father") to relocate two of the parties' four adopted minor children with him to Florida. The order also established terms for the mother to have pre-arranged daily telephone and Internet contact with the relocated children, and to visit with them during the summer months and holiday vacations. The order was issued after a plenary hearing in which both parents were represented by counsel.

Because we are satisfied that the relocation order comports with applicable law, including the standards of Baures v. Lewis, 167 N.J. 91 (2001), we affirm.

I.

Presently divorced from one another, the parties have had to deal with quite difficult circumstances concerning the behavior of, and the relationships among, their adopted children. Here are the pertinent facts that emerged at the plenary hearing.

The parties began dating after they met in college in 1989. They were married on June 7, 1991 and lived in Las Vegas, Nevada. While living in Las Vegas, the parties decided to become foster parents. They began to adopt children through the "foster gift system," adding five children in succession to their household in less than a year.

The parties began caring for their first foster child, a daughter Alice, in February 2000. The mother worked at a pediatric hospital at the time. Shortly thereafter in April 2000, the parties brought into their family a foster son, Sam, born October 16, 1993. After a sexual encounter occurred between Sam and Alice, Alice was permanently removed from the parties' home.

In May 2000 the family added a second foster son, Walter, a few weeks after he was born on April 3, 2000 and had been taken to a shelter. The parties next accepted a daughter, Lois, born July 3, 1997, in November 2000. Finally, in January 2001 the parties added a third foster son, David, who was born on January 14, 1999.

The adopted children were all "drug babies." David, Lois, and Sam had lived in several different homes prior to being adopted by the parties. The two older children, Sam and Lois, are biological siblings, as are the two younger children, David and Walter. However, Sam and Lois are not biologically related to David and Walter. All four adoptions were finalized in 2002.

While in Las Vegas, the parties discovered that Sam had acted out sexually with other children, including Lois. Sam was treated for his aberrant behavior. The parties then decided to move to New Jersey with all four children. The father's parents in New Jersey, Andrew ("Andy") A. and Carlene ("Connie") A., provided the father with a job in Andy's business and also purchased a house for the parties in Somers Point. The parties and the four children moved to New Jersey in 2002.

The Nevada Division of Youth and Family Services had recommended that Sam continue in treatment for his sexual misbehavior. However, upon moving to New Jersey, the parties decided that Sam would not continue treatment. Consequently, as the father acknowledged at the hearing in this case, "[n]o extensi[ve] precautions" were taken in their New Jersey home to protect the other children from Sam.

In April or May 2004, while living in New Jersey, the mother took four of the father's painkiller medications (Xanax), which was an overdose. She then struck Sam, for reasons not clear from the record, and called a suicide hotline. The situation at home then seemingly stabilized for awhile.

On June 8, 2004, however, the parties discovered that Sam had been sneaking into Lois's room at night and having sexual contact with her. The father did not himself observe the sexual contact. The mother, however, who was having trouble sleeping at night, caught Sam and Lois going into each other's rooms. She then discovered "[Sam] in his room sitting on his bed in a strange position with his penis out and erect." The next morning, the mother questioned Sam and Lois. After initially denying anything untoward had happened, both children eventually confessed that there had been sexual contact.

After seeking treatment for Sam, the parties decided to go to the local police department to press charges against Sam, who they perceived as the initiator. The mother took Sam to the police department on June 11, 2004, and he was subsequently charged as a juvenile with sexual assault. He was removed from the parties' home and placed in a facility for children.

The following day, June 12, 2004, the mother asked Lois if the father had ever touched her sexually, and she allegedly responded that he did. The mother consequently took Lois to the police station that same day, where she was interviewed by a detective. After the interview concluded, the detective informed the mother that Lois had said to him that nothing sexual had ever happened between Lois and the father. That night, the mother arranged for her brother to pick Lois up to stay at his house, while the parties took David and Walter to a movie. At or about this time, the mother told Lois that she no longer needed to call the father her "dad."

Two days later, on June 14, 2004, the mother sought and obtained a temporary restraining order (TRO) against the father, pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. As a result of that TRO, the father was removed from the parties' home and the mother was given interim custody of Lois, David, and Walter. The father temporarily was not allowed to have any contact with any of the children.

On the return date, July 22, 2004, the Family Part dismissed the TRO for lack of substantiation. Because issues involving the children still persisted, the judge presiding over that matter suggested to the mother that she might wish to apply for custody of the children and for child support. Consequently, the mother pursued such relief and the Family Part entered an order that day granting the mother residential custody of Lois, David, and Walter.

Later that same day, a case worker from the Division of Youth and Family Services (DYFS) and two State Police officers confronted the father at his parents' home in Margate. The DYFS case worker allegedly stated that the father had to leave the premises or the case worker would remove the father's adopted sister, Roxanne, then eleven years old, from the house. Roxanne was sent to stay with a friend that night, and the next day the father moved into a friend's house in Ventnor.

Around this time, the mother had the opportunity to move to upstate New York with some friends. According to her testimony, she wanted to get a "fresh start for the kids" and to get them away from the father. She therefore filed a motion in the Family Part, requesting that the children be allowed to move with her out of state. The Family Part entered an order six days later, carrying the application for hearing on a future date, at which time a DYFS representative was ordered to be present.

In the intervening days, the mother suffered a mental breakdown upon being evicted from the marital residence by the father's parents for not paying rent. According to the mother, she was "devastated" by everything that had happened, and she decided on August 11, 2004 to check into the psychiatric ward of a local hospital. She dropped the children off with her brother, Bob Smith, and her sister-in-law, Eileen Smith.

The next day, August 12, 2004, the mother made contact with the father's parents to ask them if they wanted to have visitation with the children. However, no such visitation occurred. As the father described it, over the course of that ensuing weekend, "no one [on the father's side of the family] knew where the children were or where [the mother] was to the point that there was police involvement trying to track them down." The father, his own father, and two police officers went to the marital residence, looking for the children. They instead found an empty house in a "mess." However, the search party did find some notes that had been left around by the mother. After making some phone calls, they discovered that the children had been left with Bob and Eileen Smith.

During this interval, Lois, David and Walter stayed with Bob and Eileen Smith. When the mother was released from the hospital late in the day on August 16, 2004, she did not return to the children. Instead, she went to live with her older brother, Bill Smith, and his wife Sue.

The next day, August 17, 2004, DYFS filed an Order to Show Cause against the parties seeking temporary custody of the children, in light of the father's alleged sexual assault and the mother's unstable mental state. On the return date of DYFS' application, it was agreed that Lois, David and Walter would remain with Bob and Eileen Smith, and that the parties would not see the children for the time being.

After about a month, Bob and Eileen Smith indicated they would not keep the children any longer, as they were having trouble handling them. They specifically asked to have the two younger boys, David and Walter, transferred to the father's parents, Andy and Connie A. According to Connie A.'s testimony at the relocation trial, around this time the mother "apparently was causing a lot of problems wanting to take the children by herself."

The parties returned to court on September 14, 2004 on the DYFS matter. On that date, the judge placed Lois with the mother's older brother, Bill, and her sister-in-law Sue. Simultaneously, the judge awarded temporary custody of David and Walter to Andy and Connie A. Both parties were allowed parenting time with David and Walter supervised by the father's parents, and also could visit Sam at the facility in which he had been placed through the juvenile proceedings. Further, the mother was allowed to visit Lois under the supervision of Bill and Sue Smith, but the father was not permitted any contact with her.

The paternal grandparents, Andy and Connie A., cared for David and Walter in their home for almost a year. During that time, they were responsible for the boys' day-to-day needs. Since both boys were behind in their schooling, the father's parents sought out educational programs for them. Consequently, Walter was placed in a special needs program in Margate. Meanwhile, David was placed in a Margate school with soccer and basketball programs, which fostered the physical activity needed to mitigate his diagnosed condition of ADHD.

During this time period, although the father was not allowed to live at his parents' home, he nonetheless had daily contact with David and Walter. He normally saw the boys in the morning before school, and again after he got off of work for dinner and homework time until they went to sleep.

The father's parents were also responsible during this time frame for coordinating the boys' visitation times with the mother. The mother generally had visitation one afternoon a week after school and one weekend day. The mother acknowledged in her trial testimony that Connie A. was "cooperative" during this process. She conceded that the boys loved their paternal grandparents very much but, although she had no specific proof of it, the boys did report to her that there was "constant yelling" while they lived there.

In December 2004 the mother filed a complaint for divorce. An uncontested Final Judgment of Divorce (FJD) was granted by the Family Part on April 25, 2005. The FJD did not resolve custody or parenting time issues because of the continued pendency of the DYFS litigation.

After a fact-finding hearing in the DYFS matter on June 29, 2005, the court entered an order establishing certain interim arrangements for the children. Among other things, the order granted the mother supervised parenting time with David and Walter on Mondays and Tuesdays, at "times to be agreed upon." The order also reflected that the claims against the father for sexual abuse of Lois were withdrawn.

The DYFS matter was substantially concluded at a dispositional hearing on July 25, 2005. The litigation was terminated as to David, Walter and Lois, but remained open as to Sam, who continued to be housed in a program for juveniles with sexual problems. By virtue of the July 25, 2005 order, the father was awarded custody of David and Walter and was permitted to move back into his parents' house. The mother was awarded custody of Lois. Sam was to remain in the custody of DYFS. Both parents were ordered to follow the recommendations of mental health professionals.

The July 25, 2005 order in the DYFS case lifted the supervisory constraints on the mother's parenting time with David and Walter, but left intact the prior schedule of two days per week. Parenting time between the father and Lois was suspended without prejudice. The order also stipulated that there was to be no contact between Sam and Lois unless the children's respective therapists permitted written communication between them. Additionally, the order provided that the mother "may not relocate from N[ew] J[ersey] without order of [the] court."

The father subsequently moved into his parents' house with David and Walter. Thereafter, the Family Part issued in the parties' matrimonial docket a series of three orders in August 2005, as the result of various motions and cross-motions by the parties. The last of those orders, issued on August 15, 2005, specified that the mother would have parenting time with David and Walter each Saturday from 10:00 a.m. to 7:00 p.m., and also on one weeknight from 4:00 to 7:30 p.m., to be "scheduled consistent with the children's activities."

In actual practice, due to the parties' varying work schedules, and the children's varying sports and social schedules, the mother's weekend visitation with David and Walter would often vacillate between Saturdays and Sunday. Even so, the mother was still allotted twelve and a half hours per week with David and Walter. In some weeks, however, the mother did not use all of her time, having to cancel visits because she was working several jobs.

During this time frame, the mother moved frequently, residing in at least four different places within about a year and a half. According to the father's testimony, the mother also was erratic concerning her parenting time. He asserted that in some weeks the mother would not call to arrange visits with David and Walter, or might take the boys out for only an hour to get something to eat. Additionally, he contended that the mother would never ask to speak to the children when calling him to arrange visits, and rarely asked about their schoolwork, grades, social activities, or friends. On the other hand, the paternal grandmother, Connie A., testified that occasionally the mother's visits would actually exceed the allowed time, and that the mother's weekend visits were "quite consistent."

The father did cancel one of the mother's visits. That occurred after the father had learned that David and Walter had been taken to a reunification therapy session with Sam and Lois without his knowledge. The father cancelled the next scheduled visit, because, as he asserted, the mother had informed him of her intentions of taking David and Walter to another such session.

During this time, the father worked at a local hospital as a patient transporter. According to the father, after word had spread of the sexual accusations within the family, "nasty terms" were used by others to describe him, and co-workers acted suspiciously of him.

As time progressed, the father's parents, whom he described as "the children's permanent support network," decided to move to Florida. Their move was prompted by several factors. Connie A. had been in a bad automobile accident, and Andy A. suffered from adult onset asthma. Because winters were difficult for both of them, they decided to semi-retire to warmer weather. The father desired to move with them and the two boys.

The paternal grandparents originally anticipated buying a residence in Mexico. However, they decided to buy a house in Florida as a result of the father's ongoing litigation in the United States involving the children. Andy and Connie A. purchased a large four-bedroom house in a gated community on the Gulf Cost of Florida. The house had a swimming pool and was located on a golf course.

The father and his parents looked into the Florida schools for David and Walter, although the father conceded that Connie A. did most of the research, because she was physically in Florida and was already doing research for Roxanne's schools. Connie A. testified that depending on what time of the year the boys moved to Florida, they would attend either the local charter school or the local elementary school. The charter school is a small school with small classes and an emphasis on parent involvement. According to Connie A.'s testimony, the school was rated number two in the State of Florida, and is nationally recognized as a school of excellence. The other option, the local elementary school, runs through fourth grade, and while it has not earned national accolades like the charter school, Connie A. nonetheless discovered that it was an "excellent school."

Because David's pediatrician recommended vigorous physical activity for his ADHD, and because both children were interested in a variety of pursuits, the father and Connie A. also researched local opportunities in Florida for after-school and weekend activities. The area had programs for soccer, basketball, and baseball after school, and also offered children's programs in piano, karate, tennis, and golf. The father and Connie A. believed that the sports and social opportunities for the boys would be better in Florida, partially because of the warmer weather and the relationship that had developed between the boys and their Aunt Roxanne, who would be moving to Florida.

The father sought and obtained employment in Florida as a bartender in a country club. He also planned to work as an assistant in a home repair business that Andy A. started in Florida.

With all of these plans in place, the father filed a motion in the Family Part on June 22, 2006, seeking court approval to relocate David and Walter with him to Florida. In support of his application, the father represented that the boys had been down to the house in Florida, and that his parents would be available to assist him in raising them there. He contended that nobody in New Jersey could help him care for David and Walter after his parents moved.

The paternal grandparents moved to Florida on August 4, 2006. The father proposed to move into that house with David and Walter for most of the year, or, if need be, in a condominium in that same community that his parents had separately purchased and was only five hundred feet from their own dwelling. As he testified at the relocation trial, the father believed that there was "[m]ore than enough" room in his parents' house for the boys.

The father proposed that the boys would keep contact with their mother by telephone and through an Internet "web cam" while they lived in Florida. Additionally, the father proposed to arrange to bring the boys to New Jersey over their Christmas vacation, and for four to six weeks through June and July. If the father was not available to transport the boys during the summer, he suggested that his parents could bring the children to New Jersey, as they planned on vacationing in Margate. The father admitted that he had not discussed with his prospective employer in Florida the possibility of taking a week off during Christmas. In total, the father proposed that the mother would have at least thirty-eight days of annual parenting time with David and Walter.

The mother, assisted by counsel, opposed the father's motion to relocate. She contended that she was very close with David and Walter. She maintained that the move would be very hard on their relationship, especially because the boys do not like to talk on the phone. The mother also claimed that her computer literacy was "not great" and she had never used a web cam. She also indicated that Lois was continuing in therapy and being treated by two doctors. The mother herself was not attending individual therapy. She further noted that she was visiting with Sam, who remained in the State's custody, twice a week.

The mother also claimed that her work schedule as a nurse and her financial situation would not likely permit her to take time off during the summer. She testified that she had no family in Florida, but that David and Walter did have some contact with her extended family in New Jersey. She acknowledged, however, that the boys had not recently seen any of their mother's extended relatives, and had occasionally seen an aunt in Galloway and a few other relatives, some of whom had since moved to Michigan or New York.

The relocation trial was conducted in its entirety on September 14, 2006. At the time of the trial, David was eight years old and Walter was six. No witnesses other than the father, the mother and Connie A., the paternal grandmother, testified. Neither party offered any expert witnesses. The parties did submit numerous exhibits, which documented much of the troubled history of their family.

After considering the proofs, the trial judge issued a detailed, twenty-three page written opinion on October 12, 2006, and an accompanying order, approving the father's proposed relocation of David and Walter with him to Florida, on certain conditions for parenting time with the mother.

In the course of the judge's ruling, he determined that the father, as the custodial parent of David and Walter, had demonstrated a good-faith reason for the Florida move. On this point, the judge found that the paternal grandparents "have been significant caretakers along with [the father] in the lives of these two (2) boys." The judge noted that, "[a]s part of their lifetime plan, [the father's] parents have sold their home . . . for the purpose of permanently moving to Florida," and that the father legitimately desired to join them. The judge also noted that the father had been "stigmatized" in New Jersey by the allegations of sexual abuse levied against him, which were ultimately dismissed for lack of substantiation. The judge also took note of the father's success in finding employment in Florida.

The trial judge additionally found that the proposed relocation to Florida would not be contrary to the children's best interests. The judge noted that the father, aided by his own parents, had taken care of David and Walter since gaining custody of them. He also found that the father and his parents had been supportive of the mother's parenting time, and had not "done anything to interfere with [her] contact with the boys." By contrast, the judge found that the mother had "not been a significant caretaker" for the two younger boys since the allegations of Sam's sexual abuse came to light, that she was "inconsistent" in taking advantage of her parenting time, and that she had "maintained an unstable lifestyle," moving four times in a two-year period and causing the daughter Lois to attend five different schools in that time. The judge noted that the mother still believes that the father abused Lois, and that, consequently, she has alienated Lois from her father. The judge further noted that the mother had not shown much interest in fostering a relationship with David and Walter until the father had filed his relocation motion.

Furthermore, the trial judge was satisfied that David and Walter would receive in Florida educational, health and leisure opportunities "at least equal to what is available here" in New Jersey. The judge also found that David's special needs with ADHD would be sufficiently addressed in Florida.

The judge was also satisfied that the father's relocation proposal adequately accommodated the mother's role, as the non-custodial parent, in maintaining contact with David and Walter. The judge approved, with minor clarifications and adjustments, the visitation schedule proposed by the father. The judge also provided for daily pre-arranged telephone calls between the mother and the two younger boys, as well as Internet contact at the mother's option.

The trial summarized his findings and conclusions as follows:

This Court is satisfied that [the father] has set forth a good faith reason for the move. As a result of the circumstances that have arisen out of the sexual allegations that have torn this family apart, the Court finds that [the mother] has not worked at all to maintain the family integrity and to work to deal with the serious emotional and psychological problems of [Sam]. Rather, her actions have contributed to the family being torn apart. Prior hearings have resulted in Court rulings that it is in the best interest of [David] and [Walter] that they be in the custody of their father. [The father] has put into place a support system through the generosity and kindness of his parents who clearly love [David] and [Walter]. Because of the age of his parents, they have followed through on their life plan of retiring to Florida but they have made arrangements so that [David], [Walter] and [the father] will have appropriate living arrangements in Florida.

[The father] has sought and obtained employment in Florida which will allow him to support him and the children. His parents will assist him so that he can maintain his employment. He has demonstrated throughout this ordeal that he has the ability to provide and maintain a stable lifestyle for his children.

Unfortunately, the [mother] has not demonstrated that she is concerned with or willing to take the steps necessary to keep the family unit together. Her actions have contributed to the alienation of [Lois] from the [father]. She has undermined the [father's] parental responsibilities by secretly taking [David] and [Walter] to at least one (1) therapy session where [Sam] was present. She has violated Court Orders by allowing [Sam] to have contact with [Lois] notwithstanding the fact that he has admitted that he sexually abused [Lois]. She openly admitted that she is working to reunify [Sam] and [Lois] and bring [Sam] back into her home while still maintaining that [the father] should have no contact with [Lois] since she believes [the father] has sexually abused [Lois]. As indicated above, the Court rejects this belief since it is merely a figment of [the mother's] imagination and has no basis in fact whatsoever.

The burden is on the [mother] to produce evidence not just that the visitation will change but that the change will negatively affect the children. [The mother] has not done so. She has merely indicated that she does not believe that the time proposed by [the father] for the children to come to New Jersey is sufficient. She has also rejected out of hand any possibility of her going to Florida since she makes a blanket statement that she cannot afford same. She makes that statement in light of the fact that there are relatively inexpensive flights on Spirit Airlines that fly directly from Atlantic City, New Jersey to an airport near where the [father] will live. She made no investigation as to the cost of any such travel but merely rejected any suggestion that she take [Lois] to Florida in order to see [David] and [Walter].

There is sufficient evidence in the record for the Court to conclude that the care of [David] and [Walter] has been integral to the living arrangements of [the father] and his parents.

There has been no evidence presented that [David] and [Walter] are not being properly taken care of by their father or that they are not doing well in school.

In fact, the [mother's] objections to the move boil[] down to the fact that she does not want them to go. She has not raised any factual basis that could lead this Court to conclude that such a move would not be in the best interest of these children.

Therefore, this Court concludes and finds that such a move will not be inimical to the best interest of the children and such a move would in fact be in their best interest. The children will not be harmed by visiting with their mother on the parenting schedule set forth by the [father]. This schedule in terms of days is not substantially different from the time that [the mother] chose to see the children prior to this application being made. It is true that there will be significant gaps of time when the children will be attending school in Florida when they cannot come to New Jersey. However, they can continue to have contact with their mother via telephone or over the internet if she so chooses. Additionally, she could plan a family vacation to Florida so that [Lois] would have contact with the boys during the school year.

Likewise, this Court is satisfied that [the father] and his parents will take any steps necessary to encourage such visits and encourage the boys to have regular scheduled telephone time with their mother and to be able to see their mother during the holidays, school breaks and extended time during the summer.

Therefore, this Court will allow [the father] to permanently relocate to the State of Florida with [David] and [Walter]. Custody of [David] and [Walter] shall remain with the [father]. The parenting time that will be put into effect upon [the father's] move to Florida will be as follows:

1. [The father] will insure that [David] and [Walter] come to New Jersey for the last two (2) weeks of June and remain for the entire month of July. The boys will reside, while in New Jersey, with either [the father] or [the father's] parents. The [mother] can see the boys on a daily basis. However, unless she makes an application to the Court for overnight parenting time, there shall be no overnight parenting time between the [mother] and [David] and [Walter]. The Court is making this provision since the Court does not know the situation that will exist concerning [Sam]. This Court has concerns about [Sam] returning to the [mother's] home and the Court wants to review all of the information as to the [mother's] living arrangements as well as the situation between [Sam] and [Lois].

Additionally, [the father] shall insure that [David] and [Walter] shall come to New Jersey for at least one (1) week of their two (2) week Christmas school vacation. They must be in New Jersey for Christmas Eve and Christmas Day which they will spend with the [mother]. Additionally, the boys shall not have any overnight parenting time with the [mother] unless an application is made to the Court by the [mother] which fully explains her living arrangements as well as the living arrangements of [Sam] and [Lois].

2. The [mother] may have daily telephone contact with [David] and [Walter] at such times as can be arranged between the [mother] and either [the father] or [the father's] parents. Should [the mother] so desire, she may have internet contact with the boys again as arranged between [the mother] and [the father] or [the father's] parents.

3. At any time during the course of the year should [the mother] desire to travel to Florida to see [David] and [Walter] she shall be allowed to see the boys each day that she is in Florida. Any overnight contact between her and the boys must be approved by the Court.

The mother now appeals. In her pro se brief, the mother does not set forth any legal arguments challenging the Family Part's order, insofar as it permitted the father to relocate David and Walter with him to Florida. Instead, the mother focuses upon difficulties with her parenting time and contact with David and Walter, and the father's alleged failure to provide her with information about the boys' activities, problems that have seemingly arisen since they moved to Florida. She also seeks overnight visits for David and Walter in her apartment, where Sam apparently now resides.

II.

As a preliminary matter, we note that the legal necessity for the father, who was established as the custodial parent of David and Walter in the DYFS litigation, to obtain court approval to move those children from New Jersey, is not entirely apparent. N.J.S.A. 9:2-2 requires such court approval for children who were either born in New Jersey, or who have resided here for five years. That statute appears inapplicable, since the record indicates that David and Walter were born in Nevada, and did not move here with the parties until, as the mother's brief represents, December 2001, which is less than five years before the Family Part's October 18, 2006 decision. Nonetheless, the parties and their counsel did not appear to object to the Family Part's jurisdiction in the relocation proceedings, or to the application of the relocation factors of Baures v. Lewis, supra, 167 N.J. at 116-17. Given that procedural history, and the fact that the father has not raised an objection in this regard, we continue to adhere to the premise that the Baures standards apply here.

Although, as we have already noted, the mother has not raised any substantive arguments that the trial judge misapplied the Baures factors in authorizing the relocation of David and Walter, we have conducted our own independent review of the record and are fully satisfied that there were ample "good faith
reasons" for the move, and that the move "is not inimical to the [boys'] best interests." Baures, supra, 167 N.J. at 111, 113. See also MacKinnon v. MacKinnon, 191 N.J. 240 (2007) (reaffirming the Baures relocation factors). We affirm the relocation order, substantially for the reasons expressed in Judge Baker's well-reasoned written opinion dated October 18, 2006.

With respect to the mother's concerns regarding parenting time, overnight visits, parental communication, and potential reunification with Sam, and the like, the record does not indicate that any of those issues have been presented to and decided by the Family Part since David and Walter moved to Florida. Consequently, we shall not address those operational issues here, see Nieder v. Royal Indemn. Ins. Co., 62 N.J. 229, 234 (1973), without prejudice to the mother filing with the Family Part a motion for enforcement or changed circumstances, as may be appropriate.

Affirmed.

 

Because of the sensitive nature of some of the pertinent facts, including acts of sexual abuse committed by the parties' oldest adopted son on their adopted daughter, we shall refer to the parties by their initials and have impounded the record. We also have substituted fictitious names for each of the adopted children.

As we have indicated, see note 1, supra, the names of the children in this opinion are all fictitious but gender-consistent.

Alice is not a subject of the order at issue, and appears to be out of contact with both of the parties and the other children.

Sam had also admitted to grabbing David's penis in the bathtub on the first day that David was brought home.

The record reflects that the mother was diagnosed with chronic pain syndrome after an accident in June 2003.

The mother had accidentally overdosed once before in 1994.

At the relocation hearing, the mother testified that Lois had subsequently told her that she had lied at the police station.

Given her own status as a minor, we have used a fictitious name for the father's adopted sister as well.

We use fictitious surnames for the mother's siblings and in-laws, again for the protection of the minors involved.

Analogously, one of the orders in the DYFS proceedings specifically prohibited the mother from removing any of the children out of state. This suggests that the parties and their counsel may have both anticipated that the children would remain in New Jersey with either parent, absent a court order permitting relocation.

(continued)

(continued)

28

A-1840-06T1

RECORD IMPOUNDED

August 14, 2007