After a divorce in New Jersey, a custodial parent must obtain permission from the non-custodial parent or the court before moving out of state with the parties’ children. For over a decade, New Jersey courts have used the test announced in Baures vs. Lewis, 167 N.J. 91 (2001), in deciding whether to allow a custodial parent to move out of state with the parties’ children. On August 8, 2017, the Supreme Court of New Jersey revisited and revised that standard in its opinion Bisbing vs. Bisbing, ___ N.J. ___ (Aug. 8, 2016) (slip op.). The new NJ child relocation rule is simply stated, but time will tell if it’s as simple to apply.
The New Jersey (NJ) relocation statute allows a custodial parent to relocate out of state with the child if the noncustodial parent doesn’t object. N.J.S.A. 9:2-2. If there is an objection by the noncustodial parent or the child (if of age), then the custodial parent must obtain court approval before moving the child from the court’s jurisdiction but showing a reason or cause for the move.
Historically, courts were reluctant to allow a custodial parent move out of state with the non-custodial parent’s children and set a high bar for custodial parents seeking to do so. The courts were concerned about how distance would affect the children’s relationship with the non-custodial parent. As a result, the courts favored keeping the children in the state.
In 2001, in Baures vs. Lewis, the Supreme Court of New Jersey revisited the rule for determining whether to allow a custodial parent to relocate out of state with his or her children over the other parent’s objection. Courts had previously looked only at the effect of relocation on the children. But the court acknowledged social science studies showing that what was good for the custodial parent could also be good for the children. Additionally, technology provided vastly improved modes of communication over those previously available. The court also noted a trend in other states, which had eased the burden on custodial parents and increasingly allowed them to move out of state children even if the noncustodial parent objected.
In light of these factors, the court revised the standard to be applied to relocation cases and set out a list of factors a court must consider in deciding whether to allow a New Jersey custodial parent to move out of state with the parties’ children. Courts were to consider the following factors:
The court acknowledged that not all factors might apply in all cases and pointed out that an impact on the noncustodial parent’s visitation, without more, was not enough to deny a custodial parent’s request to move out of state. Rather, using the factors above, the custodial parent only had to show that there was a good faith reason for asking to move out of state and that the move would not be inimical to the children’s interests. If the custodial parent satisfied the court on those points, then the court would grant the request to relocate unless the noncustodial parent could show that the request to move was not made in good faith or that it was not in the children’s interests.
Since 2001, trial courts, lawyers, and parents have used the factors set out in Baures when arguing and deciding custodial parents’ requests to move out of state with their children. But on August 8, 2017, in Bisbing vs. Bisbing, the Supreme Court of New Jersey revisited the NJ child relocation standard and made significant changes in cases where parties share joint legal custody.
The court found that the reasons cited in 2001 for establishing the “good faith/not inimical to the child” test no longer supported the court’s 2001 restatement of the test. First, social science was not settled regarding the effect an out-of-state relocation would have on a child. Further, the trend in other jurisdictions cited by the court, that of recognizing a custodial parent’s right to relocate, had not continued. As a result, the court revisited Baures and revised the rule for evaluating relocation requests.
In Bisbing, the court again replaced the “good faith/not inimical to the child” test with a “best interests analysis” when parents have joint legal custody. That test would apply regardless of whether the relocating spouse provided the primary residence for the children or the parents equally shared custody. The court held that the new best interests analysis is in harmony with custody statute, New Jersey Statute 9:2-4. Thus, a court considering a relocation request should consider the same factors as when determining custody:
This list of factors is not exhaustive, but the focus is squarely on the best interest of the child.
More than just the name of the relocation test has changed as a result of Bisbing vs. Bisbing. As detailed above, the trial court in relocation cases must consider a completely different set of factors—the same factors the court considers in an initial custody determination.
Comparison of the old and the new factors shows that the court has moved away from considering the rights of the custodial parent under the Baures test. Now, the focus is squarely on whether the move is in the best interests of the children. Whether the new “best interests analysis” results in significantly different decisions in relocation cases remains to be seen. At a minimum, it changes the evidence required to show cause for an NJ custodial parent moving out of state and for the other parent opposing the children’s relocation.
If you have a question about the relocation of your children out of state, you need to consult an expert on NJ divorce law. Contact me, Elizabeth Rozin-Golinder, by filling out my Contact Form or calling (732) 377-3367. Located in East Brunswick, I have years of experience as an NJ divorce attorney in Middlesex County and Monmouth County, and I’ll provide expert advice about how the new NJ child relocation standard applies in your case.
