New Standard for Child Relocation Applications in New Jersey

Baures v. Lewis Standard for Relocation

For just over 16 years, Baures v. Lewis was the standard in New Jersey for allowing a parent to permanently relocate out-of-state with a child against the other parent’s wishes. N.J.S.A. 9:2-2 provides that a parent seeking to relocate and remove a child from New Jersey without the other parent’s consent must show “cause.”

Pursuant to Baures v. Lewis, a parent designated as the Parent of Primary Residence (PPR) could show cause to relocate the children out of state by: 1) demonstrating a good-faith reason for the move, and 2) that the move would “not be inimical to the child’s interests.” The New Jersey Supreme Court has now abandoned that standard in favor of a best interest of the child standard.

New Jersey Supreme Court Sets New Child Relocation Standard – Best Interests of the Child

In Bisbing v. Bisbing, the New Jersey Supreme Court held that the outcome of contested relocation determinations must be made pursuant to the best interests of the child standard in place of the Baures v. Lewis standard. In all contested relocation disputes, courts should conduct a best interests analysis to determine “cause.” The best interests of the child standard is the new standard whether the custody arrangement designates a Parent of Primary Residence and a Parent of Alternate Residence, or provides for equally shared physical custody.

Bisbing v. Bisbing

In Bisbing v. Bisbing, pursuant to the terms of a Marital Settlement Agreement (MSA), the divorcing parents agreed that the Mother would have primary residential custody of their twin daughters. The MSA also included a relocation provision stating that “[n]either party shall permanently relocate with the children from the State of New Jersey without the prior written consent of the other.”

Several months later, the Mother informed the Father that she intended to marry a Utah resident whom she had been dating prior to the granting of the divorce. However, the Father refused to consent to the permanent relocation of the children to Utah.

As a result, the Mother filed a motion seeking an order permitting her to permanently relocate the children to Utah. The Father contended that the Mother had negotiated the MSA in bad faith, securing his consent to her designation as the Parent of Primary Residence without informing him that she intended to relocate.

Applying the standard established in Baures v. Lewis, the trial court granted the Mother’s application for relocation, finding she presented a good-faith reason and that the move would not be inimical to the children’s interests. Thereafter, the Mother moved with the children to Utah.

The Father appealed the trial court’s decision. The Appellate Division reversed and remanded, finding that there was a genuine issue of material fact as to whether the Mother negotiated the custody provisions of the MSA in good faith. The Mother returned with the children to New Jersey. The trial court ordered the parties to abide by the residency provisions in the MSA.

Supreme Court Finds “Special Justification” to Abandon Baures Standard

The Supreme Court recognized a “special justification” to abandon the standard it had established in Baures v. Lewis for determining the outcome of contested relocation matters. In place of the Baures standard, courts 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.

The Court remanded to the trial court for a plenary hearing to determine whether the custody arrangement set forth in the parties’ MSA should be modified to permit the relocation of their daughters to Utah.

No Waiver of Interstate Child Relocation

The Court declined to agree with the Father’s assertion that by consenting to the interstate relocation provision of the MSA, the Mother waived her right to a judicial determination of her relocation application under N.J.S.A. 9:2-2. However, the Mother must demonstrate changed circumstances to justify modification of the MSA.

Further, because the requested relocation is permanent, the Mother must demonstrate that there is “cause” for an order authorizing relocation, which shall be determined by a best interests analysis considering the factors in N.J.S.A. 9:2- 4(c).

Notably, because the best interests standard applies to the determination of “cause” notwithstanding the designation as the Parent of Primary Residence, the Trial Court need not decide whether the Mother negotiated the parties’ MSA in bad faith.

If you are considering relocating out of the state of New Jersey, it is extremely important that you contact an experienced matrimonial attorney to determine how to proceed.

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Plaintiff is Over the Moon, as the Third Circuit Applies New Jersey’s Arbitration Cases to Defeat Defendant’s Demand for Arbitration

Moon v. Breathless, Inc., ___ F.3d ___ (3d Cir. 2017).  At least since 2014, when the Supreme Court of New Jersey decided Atalese v. U.S. Legal Servs. Grp., L.P., 219 N.J. 430 (2014) (discussed here), New Jersey law has been clear that contractual arbitration clauses must explicitly state that a party is waiving a jury […]

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Treating Doctors Unable to Give Expert Testimony

            A doctor who stepped in to correct a colleague’s mistake should not have been allowed to testify during the malpractice suit. This is according to a three-judge panel in the appellate division.

The Third Circuit Grants Mandamus, and Announces a New Test for Transfer in Unusual Circumstances

In re Howmedica Osteonics Corp., ___ F.3d ___ (3d Cir. 2017).  Today’s opinion by Judge Krause contains a little bit of a lot of things: in no particular order, waiver, forum selection clauses, section 1404 transfer law, necessary party law, personal jurisdiction, mandamus, appellate jurisdiction to grant mandamus, and the standard of review for mandamus […]

The post The Third Circuit Grants Mandamus, and Announces a New Test for Transfer in Unusual Circumstances appeared first on Appellate Law NJ Blog.

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The Judicial Conference Advisory Committee Seeks Comments on Proposed Changes to Federal Appellate Rules

The Judicial Conference Advisory Committee is seeking comments on proposed changes to the Federal Rules of Appellate Procedure (as well as proposed changes to other sets of federal rules).  The details are here. The Federal Rules of Appellate Procedure that are proposed to be amended are Rules 3, 13, 26,1, 28, and 32.  The amendments […]

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Supreme Court’s Landmark Ruling in Child Relocation

A standard of New Jersey family law was overturned on Tuesday in a unanimous decision.  For sixteen years the determination for child relocation as determined by Baures v. Lewis had stated that a custodial parent could relocate to another state with a child so long as the move was made in good faith and was not ‘inimical to the child’s best interests.”

SUPREME COURT OF NEW JERSEY DEPARTS FROM STANDARD UTILIZED IN RELOCATION CASES

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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