Morgan v. Morgan
12 A.3d 192
N.J.2011Background
- Split from marriage; PSA awarded joint custody with Leary as primary residence parent; Morgan sought re-determination and relocation restrictions based on anticipated move by Leary to Massachusetts; trial court denied relocation and found Leary emotionally unstable; Appellate Division reversed, permitting relocation; Supreme Court granted certification to reconsider under Baures framework.
- Trial relied on expert reports; some evidence from non-testifying experts was admitted; changes in parties' circumstances occurred over four years; girls aged 12 and 9 at time of remand; Morgan remarried with a new half-sibling for the children.
- Court recognized significant changes in present circumstances and remanded to apply Baures factors with updated evidence; remand scope broadened beyond narrow logistics to assess current living record; decision emphasizes that removal analysis should account for current realities.
- Court affirmed that Morgan did not prove de facto shared custody; found Baures factors applicable but required a broad, present-reality remand; held that the remand order should be expanded to accommodate current circumstances and possible updated psychological evaluations.
- Remand allowed to incorporate present circumstances and conduct new Baures-factor review; hearing should be expedited; parties may submit new evidence relevant to custodial status and relocation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| De facto shared custody exists? | Morgan claimed de facto custody. | Leary denied de facto shared custody. | Not proven; no plenary hearing required. |
| Relocation under Baures test? | Leary's move harmed children or lacked good faith. | Move in good faith; avoid harm; applicable under Baures. | Remand for Baures-factor analysis with updated realities. |
| Scope of remand after four years? | Remand should revisit factual record broadly. | Narrow remand sufficient. | Remand scope broadened to reflect present circumstances. |
| Custodial status vs removal framework? | Seeks custody framework due to de facto custody. | Relocation analysis under Baures; custody framing not controlling. | Removal framework applied with updated Baures analysis. |
Key Cases Cited
- Baures v. Lewis, 167 N.J. 91 (2001) (two-pronged test with twelve-factor Baures framework for removal)
- Holder v. Polanski, 111 N.J. 344 (1988) (custodial move allowed if not inimical to child; stressed custodial liberty)
- Cooper v. Cooper, 99 N.J. 42 (1984) (custodial move; real advantages; not inimical to child first)
- Pascale v. Pascale, 140 N.J. 583 (1995) (preference for term primary caretaker and related halls)
- O'Connor v. O'Connor, 349 N.J. Super. 381 (App.Div. 2002) (recognizing time-and responsibilities-based evaluation in custody/removal)