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D'Onofrio v. D'Onofrio

Superior Court of New Jersey, Chancery Division
144 N.J. Super. 200; 365 A.2d 27 (1976)
ELI5:

Rule of Law:

A custodial parent may be permitted to move children out of state, over the non-custodial parent's objection, upon a showing of cause, which is established when the move offers a real advantage to the new family unit and a realistic, alternative visitation schedule can be established to preserve and foster the non-custodial parent's relationship with the children.


Facts:

  • Dominick D'Onofrio and Phyllis D'Onofrio divorced, with Phyllis being granted custody of their two young children, a boy aged six and a girl aged four.
  • Dominick D'Onofrio, the non-custodial father, was granted an undefined right of 'reasonable visitation.'
  • Phyllis and the children resided in an apartment on a busy street in Garfield, New Jersey, and lived on a tight budget consisting of her modest salary and child support payments.
  • The older child was hyperactive, and the family had previously sought mental health counseling.
  • Phyllis desired to move with the children to her hometown of Rock Hill, South Carolina, where most of her extended family resided.
  • In South Carolina, Phyllis had secured a higher-paying job as a bookkeeper, found a more affordable and suitable apartment in a complex with recreational facilities, and would have a strong family support system.
  • Since the divorce, Dominick had seen the children weekly on Fridays, typically at his parents' home, and had never kept them for an overnight visit.

Procedural Posture:

  • Dominick D'Onofrio and Phyllis D'Onofrio were divorced by a judgment in December 1973.
  • The divorce judgment granted custody of the two minor children to Phyllis D'Onofrio and 'reasonable visitation' to Dominick D'Onofrio.
  • Phyllis D'Onofrio (defendant) filed an application in the Superior Court of New Jersey, Chancery Division, seeking leave to remove the children to South Carolina to establish permanent residency.
  • Dominick D'Onofrio (plaintiff) objected to the application.
  • The Superior Court conducted a plenary hearing on the matter to determine if 'cause shown' existed to permit the removal under N.J.S.A. 9:2-2.

Locked

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Issue:

Does a custodial parent show sufficient cause under N.J.S.A. 9:2-2 to move children out of state when the move will substantially improve the quality of life for the custodial parent and children, and a reasonable alternative visitation schedule can be implemented for the non-custodial parent?


Opinions:

Majority - Pressler, J.C.C.

Yes. A custodial parent shows sufficient cause to move children out of state when the move provides a real advantage to the new family unit and a realistic alternative visitation plan can be established. The primary consideration is the best interest of the child, which is inextricably tied to the well-being of the custodial parent and the new family unit they form. The court should not prevent a custodial parent from seeking a better life for herself and the children solely to maintain a weekly visitation pattern, provided the parent's motives are sincere and a practical alternative visitation schedule can be created. Here, the move to South Carolina offers significant advantages in terms of finances, housing, and family support, which will improve the quality of life for both Phyllis and the children. Phyllis's motives were found to be genuine and not intended to frustrate Dominick's visitation rights. A reasonable alternative schedule, consisting of extended visits during summer, Christmas, and spring, is a realistic substitute that can preserve and foster the paternal relationship.



Analysis:

This decision establishes a foundational balancing test in New Jersey for child removal cases, shifting the focus from a rigid adherence to the existing visitation schedule to a more holistic view of the new family unit's well-being. It recognizes that the interests of the child are closely linked to the happiness and stability of the custodial parent. The ruling empowers custodial parents to pursue opportunities that genuinely improve their family's quality of life, provided they do not act in bad faith to interfere with the non-custodial parent's rights. This framework moves away from giving the non-custodial parent a de facto veto over relocation and instead requires courts to weigh the benefits of the move against the feasibility of creating a new, meaningful visitation arrangement.

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