Relocation
In a decision issued on August 8, 2017, the Supreme Court of New Jersey in Bisbing v. Bisbing overturned the well-established standardapplied by courts in determining whether a primary custodian should be permitted to relocate out-of-state with the child/children.
The Bisbing Court abandoned the two-prong test for relocation which the Court developed in the 2001 case of Baures v. Lewis and replaced it in favor of a “best interests of the child” standard.
Pursuant to N.J.S.A. 9:2-2, a showing of “cause” is required before a court will permit the relocation of a minor child to another state without the consent of both parents. In determining “cause”, the previous law under the Bauers case distinguished between relocation applications made by a party with shared custody (50/50) versus a party with primary custody.
Pursuant to N.J.S.A. 9:2-2, a showing of “cause” is required before a court will permit the relocation of a minor child to another state without the consent of both parents. In determining “cause”, the previous law under the Bauers case distinguished between relocation applications made by a party with shared custody (50/50) versus a party with primary custody. An application to relocate out-of-state was viewed under the “best interests” standard only if the parties had a shared custody arrangement. Under Baures, a more lenient standard was applied in cases where the party seeking to relocate had primary custody, requiring the moving party to meet a two-prong burden of proof, demonstrating: (1) There is a good faith reason for the move; and (2) The move is not inimical to the child’s best interest. Essentially, Baures eased the burden for primary custodial parents seeking to relocate with a minor child. Finally, along came Bisbing.
In overturning the Baures standard, the Supreme Court in Bisbing candidly mentions its hesitancy to overrule itself— but cites a “special justification” requiring use of a “best interests” analysis across the board in all relocation cases, regardless of whether the party seeking to relocate has primary or shared custody. In explaining its decision in Bisbing, the Supreme Court noted essentially that the rationale underlying Baures was no longer applicable, that the social science the Court believed would develop, to paraphrase, simply did not develop.
In any event, if you are seeking to relocate out of the State of New Jersey and you share custody of your child/children with their other parent, you need to have the other parent’s written consent to relocate, or you need to have a Court order allowing you to do so. Neither option is easy. It is a rare occasion when a parent consents to their children being removed from the State, especially if the state is not close to New Jersey. The parent seeking to move might offer the other parent generous make-up time with the child/children, including the entirety of the summer—sometimes that option is acceptable to the parent remaining in New Jersey, sometimes it is not acceptable. If the parents cannot agree on an arrangement by consent, the issue has to go to trial.
Relocation trials are unique unto themselves. A “best interest evaluation” by an expert like a psychologist or children’s therapist is usually required, to assist the Court in determining what would be best for the children. Rarely, will the children testify at these trials, especially younger children. The focus on these trials is one thing and one thing only; what would be the best for the children, to move or to stay? That decision is based on several factors. Each case is different, each child is different. That is what makes a Relocation issue quite unpredictable. Think only of the children—the adults don’t matter—only the children matter. Always.