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.
NJ Child Relocation Out of State under the "Old" Baures vs. Lewis Standard
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 custodial parent’s reasons given for the move
- The non-custodial parent’s reasons for opposing the move
- The past history between the parties to the extent it bears on the reasons giving favoring and opposing the move
- Whether the educational, health, and leisure opportunities for the child in the new location are at least equal to those currently available to the child in NJ
- Whether the child has any special needs or talents and whether accommodation for those needs or talents is available in the new location
- Whether a visitation and communication schedule can be designed to “allow the noncustodial parent to maintain a full and continuous relationship” with the child
- The likelihood that the custodial parent will continue to foster the child’s relationship with the noncustodial parent after the move
- The effect of the move on extended family relationships in NJ and in the new location
- The child’s preference, if the child is of age
- Whether the child is entering the senior year in high school
- Whether the noncustodial parent has the ability to relocate
- Any other factor bearing on the child’s interest
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.
The Court Revisits the NJ Child Relocation Standard in Bisbing vs. Bisbing: The "New" Rule
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:
- The parents’ ability to agree, communicate, and cooperate in matters relating to the child
- The parents’ willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse
- The interaction and relationship of the child with his or her parents and siblings
- Any history of domestic violence
- The safety of the child and the safety of either parent from physical abuse by the other parent
- The preference of the child, if of age, and capacity to reason so as to form an intelligent decision
- The needs of the child
- The stability of the home environment offered
- The quality and continuity of the child’s education
- The fitness of the parents
- The geographical proximity of the parents’ homes
- The extent and quality of the time spent with the child prior to or subsequent to the separation
- The parents’ employment responsibilities
- The age and number of the children
This list of factors is not exhaustive, but the focus is squarely on the best interest of the child.
How the Relocation Test Has Changed in NJ Child Custody Matters
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) 810-0034. 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.