The Reality of a Marriage Story
The entertainment industry is buzzing with Golden Globe nominations just being announced. One movie with a significant amount of nominations is Noah Baumbach’s Marriage Story. It has gotten rave reviews and has additionally been the talk of the matrimonial law community.
**CAUTION - SPOILERS AHEAD**
Without getting into too much detail (because it is worth the watch on Netflix), Marriage Story is a movie about divorce and child custody, and the real emotions that go along with going through the divorce process. The movie opens with Adam Driver’s character, Charlie, and Scarlett Johansson’s character, Nicole, already planning for separation and meeting with a mediator in an attempt to complete their divorce without attorneys. However, from a legal perspective, the movie takes an interesting turn when Nicole moves to Los Angeles from New York, where the parties lived for ten (10) years and have an eight (8) year old son. At first, Charlie consented to the move, because the verbal agreement was that it was supposed to be temporary while Nicole completed a work assignment (he even later sarcastically indicates that it was not in writing). However, Nicole has ambitions to move permanently to the Los Angeles area to continue to pursue her acting career (and that is where she grew up).
Nicole eventually hires counsel, Nora Fanshaw (played by the fantastic Laura Dern), who seems to have advised her to quickly acclimate the parties’ son to life in Lost Angeles, including engrossing the child in the community and school. It is at this point in the story that I would like to discuss two (2) distinct legal ramifications and strategies.
First, the movie seems to gloss over the fact that Nicole filed for divorce in California, despite only being in California for a couple of weeks (at most). In New Jersey, there is a residency requirement to file for divorce (as there is in California). N.J.S.A. 2A:34-10 requires that a party continue to be a bona fide resident of New Jersey for at least one (1) year prior to filing a Complaint for Divorce for irreconcilable differences.
Second, and the more important discussion, regards Charlie’s rights and options once his soon to be ex-wife took their son to Los Angeles and made it clear that her intention was not to return (although in the movie Charlie is from New York, for purposes of this discussion, I will assume Charlie is from New Jersey). In New Jersey, a parent cannot permanently remove a child from the State without a Court Order or consent from the other parent. As a New Jersey litigant, Charlie could have immediately filed an emergent application in New Jersey requesting to have the litigation proceed in the child’s home state (which is not the advice he received from his two (2) different attorneys, played by Alan Alda and Ray Liotta). N.J.S.A. 2A:34-65 states that New Jersey has jurisdiction to make an initial child custody determination only if (subsection 1) “[New Jersey] is the home state of the child on the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from [New Jersey] but a parent ... continues to live in [New Jersey]....”
Therefore, Charlie would have had a good chance to move the litigation back to New Jersey. Charlie could have also contested the child’s relocation and possibly even forced Nicole to return the child to New Jersey during the matter while the issue is litigated.
As to interstate relocation, New Jersey law requires the Court to look at the best interests of the child in order to determine what custody and parenting time arrangement should occur, including whether a relocation should happen. The next step, as the movie correctly indicated, is that a best interest evaluation would occur (in most situations) wherein a licensed professional would conduct meetings with both parents and the child (both together and separately), interview collaterals (i.e. family members and other involved professionals) and eventually prepare a report including recommendations regarding custody and parenting time schedules as well as relocation. As shown in the movie, this is an involved process that dives deeply into the lives of the parties and children involved.
The movie has a realistic tone regarding the divorce process. It can be an emotionally and psychologically draining process. There are scenes that are spot on and some scenes that take artistic liberty. Nonetheless, Marriage Story sheds some light on the legal process while also effectively portraying the client’s perspective. At Ziegler, Resnick & Epstein, it is our passion and goal to make that process as smooth as possible while guiding our clients through a difficult time in their lives.