In Bisbing v. Bisbing, the parents of then-aged-seven twin girls separated and began negotiating dissolution in 2013. Shortly after the separation, the mother began a long-distance relationship with a Utah resident. In March 2014, the parties entered into a marital settlement agreement (“MSA”), which afforded the mother primary residential custody. The parties agreed to broad and reasonable timesharing of the children and provided the father with significant parenting time. Pursuant to the provisions governing relocation, the parties agreed to live within a reasonable distance from one another (within a 15 minute drive) and that any relocation more than 20 miles from the other parent would require mediation to review the custody agreement. Each party agreed not to move out of state without written consent of the other parent.

A Final Judgment of Divorce was entered in April 2014, incorporating the MSA. In January 2015, the mother notified the father of her intent to remarry and move to Utah, and requested permission to relocate with the children. Upon the father’s refusal, the mother filed a motion for relocation in March 2015. The trial court granted the mother’s motion without a plenary hearing on the condition that a visitation schedule be established through mediation. After unsuccessful mediation, the court supplemented the order with a visitation schedule largely set forth by the mother.

In reversing the trial court’s order and remanding for a plenary hearing, the Appellate Division set forth the various legal standards that may apply in a relocation action. The first step is to determine the pre-existing custodial relationship. Where the parents truly share both legal and physical custody, the party seeking relocation must show that the best interests of the child would be served by residential custody being primarily vested with the relocating parent. In situations similar to this case where the requesting party already has primary residential custody, the request is governed by the two-part Baures test, which is more favorable to the custodial parent. Baures requires: (1) a good faith reason for the move; and (2) that the move will not be inimical to the child’s interests. On its face, the mother’s request should have been analyzed under Baures.

However, the Appellate Court grappled with the complications posed by the MSA. The father alleged that the mother manipulated the negotiation of the MSA to obtain primary physical custody and avail herself of the more favorable Baures standard. The Appellate Court held that the short time between execution of the MSA and the mother’s decision to relocate raised a genuine issue of fact as to whether the mother negotiated the MSA in good faith, warranting a plenary hearing.

The Appellate Court opined that if the trial court finds that the mother negotiated in bad faith on remand, the court should analyze the relocation request under a “best interests” analysis. Even if the trial court finds good faith, however, it must still consider the impact of the carefully considered non-relocation provisions in the MSA. The court held that the State’s policy of favoring consensual agreements to resolve marital controversies requires the court to afford the bargained-for relocation provisions special weight in the overall relocation analysis. Because consensual agreements are subject to the changed circumstances doctrine, the mother must show changed circumstances and that the MSA is no longer in the child’s best interests before a modification can be effected.

In sum, the Appellate Court outlined the procedures on remand as follows: if the father is unable to demonstrate bad faith, the mother has the opportunity to prove a substantial unanticipated change in circumstances to trigger the court’s application of the Baures factors. A critical factor is the effect of moving away on the children. If the mother is unable to demonstrate an unanticipated substantial change in circumstances, even if the MSA was negotiated in good faith, the court must apply the “best interests” standard to determine removal.

So if you are divorced and considering an out-of-state move with your child, review of your Judgment of Divorce and the standards set forth in Bisbing is a must if there is no consent.

 Katherine A. Nunziata is an associate in the Family Law Practice Group of Riker Danzig Scherer Hyland & Perretti LLP and a contributor to the Riker Danzig Family Law Blog. Katherine’s interest in family law stems from a desire to help others while navigating a difficult process, and she brings a high level of compassion and zeal to her practice. Katherine is a resident in the Morristown, New Jersey office and can be reached at 973-451-8445 or knunziata@riker.com.