In what seemed like an eventual, but no less dramatic change in family law jurisprudence, the Supreme Court of New Jersey in Bisbing v. Bisbing overturned the well-established two-part test used in determining whether a primary custodian should be permitted to relocate interstate with an unemancipated child and, in connection therewith, the primary custodian’s presumptive right to relocate. In so doing, it noted a “special justification” in returning to the “best interests” of the child standard applied before Baures:
We affirm and modify the Appellate Division’s judgment. We depart from the two-part test that Baures prescribed for a relocation application brought by a parent of primary residence. We apply the same standard to all interstate relocation disputes under N.J.S.A. 9:2–2 in which the parents share legal custody—cases in which one parent is designated as the parent of primary residence and the other is designated as the parent of alternate residence and cases in which custody is equally shared. In all such disputes, the trial court should decide whether there is “cause” under N.J.S.A. 9:2–2 to authorize a child’s relocation out of state by weighing the factors set forth in N.J.S.A. 9:2–4, and other relevant considerations, and determining whether the relocation is in the child’s best interests.
While a more complete recitation of the factual circumstances and Appellate Division holding can be found in my prior blog post on this matter, this post will focus on the Supreme Court’s primary holding and underlying rationale. Based on its holding, the Supreme Court modified and affirmed the Appellate Division’s decision and remanded to the trial court for a plenary hearing to determine whether the proposed relocation of the children to Utah was in the children’s best interests.
The Supreme Court’s Discussion of Baures v. Lewis and its Progeny
Focusing its attention on N.J.S.A. 9:2-2 (New Jersey’s removal statute), the Court noted that “cause” must be shown before a child’s permanent removal to another state can occur without both parents’ consent, or the child’s consent if said child is of “suitable age” to decide. While a removal request involving shared custodians was treated as an application for a change in custody – thereby resulting in application of the “best interests” standard – under Baures, a primary residential custodian’s burden to prove “cause” for removal was “substantially” eased so as to only require a showing that: (1) the requested move is being sought in good faith; and (2) the move will not be inimical to the child’s interest.
In analyzing this two-part standard, the Baures Court listed out several factors for consideration. No longer was the custodial parent required to show there would be no adverse impact upon the visitation rights of the noncustodial parent. Rather, a relocation was to be blocked only if there was a resulting “adverse effect”, which was defined as a “change in visitation that will not allow the noncustodial parent to maintain his or her relationship with the child.”
Extensive rationale formed the Court’s basis for its Baures holding:
- A relocation benefiting the custodial parent would similarly benefit the child;
- No specific parenting time schedule was necessary to foster a child’s belief that he or she is loved and supported by both parents; and
- There existed a “growing trend in the law easing restrictions on the custodial parent’s right to relocate with the children and recognizing the identify of interest of the custodial parent and child.”
The Baures aftermath, however, often compelled trial courts to analyze the actual facts and circumstances surrounding an existing custody arrangement – not just by reviewing what a Judgment of Divorce or settlement agreement provides as to custody – to determine whether one parent was the primary custodian, or if there existed a shared arrangement. For instance, while a settlement agreement could designate one parent as the primary custodian perhaps, in practice, the other parent was the primary custodian or, at the very least, an equal custodian.
Unfortunately, since the nature of the custody arrangement essentially became determinative as to whether relocation would occur, existing case law became frequently manipulated for reasons good and bad. Indeed, the facts and circumstances in the Bisbing matter raised such questions as to whether the subject agreement’s custody and parenting time arrangement was negotiated in good faith or whether, to the contrary, it was designed to facilitate for one party a future relocation request without the other party’s knowledge.
Departure from Baures
Addressing the above-discussed social science upon which the Supreme Court relied in Baures, the Court here noted that such findings had not reached a consensus as to the impact of relocation on children following a divorce and, more notably, “the progression in the law toward recognition of a parent of primary residence’s presumptive right to relocate with children. Anticipated by this Court in Baures, has not materialized . . . As experience has proven, the standard adopted in Baures did not represent a lasting trend in the law.” Turning to other jurisdictions, the Court noted how the majority of states analyze relocation requests made by a primary custodian under a best interests test.
The Court also noted how its decision eliminates disputes and potential manipulation/bad faith allegations surrounding the parent of primary residence designation:
If a designation as the parent of primary residence will determine the result of a relocation dispute, parties may be motivated to contest that designation even if one parent is clearly in a better position to serve that primary role. As this case illustrates, the advantage afforded to a parent of primary residence in a relocation conflict may raise divisive accusations of bad faith after custody negotiations conclude.
. . .
Accordingly, we do not consider the Baures standard to be compelled by social science or grounded in legal authority today, as the Court anticipated that it would be when it decided that case. We recognize a “special justification” in this case to abandon that standard.
Return of the Best Interests Standard
In departing from Baures, the Supreme Court held:
[c]ourts should conduct a best interests analysis to determine ‘cause’ under N.J.S.A. 9:2-2 in all contested relocation disputes in which the parents share legal custody – whether the custody arrangement designates a parent of primary residence and a parent of alternate residence, or provides for equally shared custody. That standard comports with our custody statute, in which the Legislature unequivocally declared that the rights of parents are to be equally respected in custody determinations and stated that custody arrangements must serve the best interests of the child.
The Court’s decision concluded with a remand to the trial court to determine if the proposed relocation to Utah was in the children’s best interests. Notably, however, because the custody arrangement was “agreed to and incorporated in the trial court’s judgment, plaintiff is required to demonstrate changed circumstances to justify its modification.” Ultimately, however, it is no longer incumbent upon the trial court to determine on remand if the party seeking relocation negotiated the custody agreement in bad faith. The question now becomes whether the relocation is in the children’s best interests under N.J.S.A. 9:2-4(c).
The importance of the Supreme Court’s decision simply cannot be understated, as relocation law has again been transformed in a manner deemed by our High Court as consistent with present social science research, and the approach applied by majority of other jurisdictions.
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Robert Epstein is a partner in Fox Rothschild LLP’s Family Law Practice Group and practices throughout New Jersey. He can be reached at (973) 994-7526, or repstein@foxrothschild.com.
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