In a growing mobile society, the issue of post-divorce relocation has gained momentum with New Jersey families. While certainly not a new legal issue, it is one that has become more prevalent as companies and employees become more transient due to evolutions of technology and politics. With these changes there has been growth in the disputes over whether a parent can relocate out of state with a child(ren) post-divorce.
Until the New Jersey Supreme Court revisited this issue in Bisbing v. Bisbing, (a-2-2016) 077533, decided August 8, 2017, the standard to be applied to an out-of-state disputed relocation case was set forth in Baures v. Lewis, a 2001 New Jersey Supreme Court case, and N.J.S.A. 9:2-2. The Baures standard was two-pronged. It first required the court to determine the true physical custodial arrangement or which parent exercises the majority of the custodial responsibilities (i.e. de facto joint custody, or a parent of primary residence (“PPR”) and a parent of alternate residence (“PAR”), or some other variation). In the case where there was joint custody, the court was to review the request under a best interest of the child analysis. Otherwise, the court was to review the request and determine whether it was being made in good faith and whether it would be inimical to the child’s interest. In this latter analysis, the burden was not stringent on a parent requesting relocation.
In the Bisbing opinion, written by Justice Patterson, the Supreme Court explained that it rarely changes its own rulings as our jurisprudence thrives on “stability and certainty to the law.” However, after a thorough explanation on how the Court used social science in support of the Baures decision, and how that social science may or may not be correct, a departure from precedent was justified. At the time of the Baures decision, the Court relied on social science research which, at the time, tied the best interests of the child to the custodial parent’s well-being. The Court also relied on what it characterized as a trend in the law “significantly easing the burden on custodial parents in removal cases.” Fast forward 16 years later and the Court has come to learn that “social scientists who have studied the impact of relocation on children following divorce have not reached a consensus. Instead, the vigorous scholarly debate reveals that relocation may affect children in many different ways.” The Court also found that “the progression in the law toward recognition of a parent of primary residence’s presumptive right to relocate with children…has not materialized.” Looking to other states for guidance, the Court noted that the majority of states utilized a best interests test for relocation applications. The Court further opined that by eliminating the two-prong test set forth in Baures, parties would have less impetus to fight over the parent of primary residence designation in bad faith. “By tethering the relocation standard to one party’s status as the parent of primary residence, the Baures standard may generate unnecessary disputes regarding the designation.” By requiring that the best interests of the child standard be applied regardless of joint physical custody or de facto joint custody, or a PPR v. PAR situation, where parents share legal custody, all requests are treated the same and the burden of proof remains the same for the parties.
N.J.S.A. 9:2-2 requires the showing of “cause” before a court that will authorize the permanent removal of a child to another state without consent of both parents. Bisbing now tells us that in all contested relocation disputes in which the parents share joint legal custody, courts should conduct a best interests analysis to determine “cause” under the statute.
In essence, the Supreme Court has raised the burden of proof to a higher standard for a parent seeking to relocate with a child(ren), out-of-state, post-divorce, without consent from the other parent. The Court provided for uniformity in its decision as this standard is to be applied regardless of custodial designation so long as there is shared (joint) legal custody.
Will this change in the law reduce or increase the number of disputes between parents regarding post-divorce, out of state relocations? Only time will truly tell. In the interim, we shall see how it impacts practitioners and litigants when drafting their settlement agreements.
