By Julia C. Miller
Cordell & Cordell New Jersey Divorce Attorney
After a divorce, the parent who has primary physical custody of a child may wish to relocate to another state with the child. But often, the non-custodial parent opposes the move.
In such cases, it may be necessary for a court to rule on the issue of the custodial parent’s proposed relocation. It has historically been the burden of the custodial parent to demonstrate “cause” for such a move, or, in the alternative, for the non-custodial to demonstrate that the custodial parent has not properly demonstrated “cause” for such a move.
Since 2001, the New Jersey Supreme Court case of Baures v. Lewis has been the law governing relocation cases in New Jersey. Baures held that the custodial parent could relocate to another state with a child so long as the parent seeking to relocate was able to satisfy a two-part standard: (1) that the requested move was being sought in “good faith” and (2) that the move would not be “inimical to the child’s best interests.”
Child custody laws in New Jersey are intended to facilitate continuing and frequent contact between parents and children after a divorce. Under the relevant statute, N.S.J.A. 9:2-2, a showing of “cause” is required before a court can allow the custodial parent to remove a child permanently to another state without permission from both parents, or without the consent of the child (if such child is old enough that his or her consent can be properly considered). Under Baures, the burden was eased on the custodial parent, and the non-custodial parent could often face a significant battle in meeting the two-part test required by the court.
However, as of August 8, 2017, Baures is no longer the controlling law on relocation in family court cases in New Jersey. The case of Bisbing v. Bisbing provided a new interpretation for what is necessary to establish “cause” to allow a custodial parent to permanently relocate out of state with the child, even if the non-custodial objects to the move.
The Bisbing court found that Baures did not necessarily provide for the general current state of families in New Jersey. Furthermore, the standard applied by the court in Baures risked creation of unnecessary arguments between parties, particularly when determining whether or not the proposed relocation to another state had a “good faith” basis.
In rendering its decision, the Bisbing court looked to other jurisdictions and how they decide relocation cases. Justice Patterson, who wrote the opinion for the court in Bisbing, took note of the fact that the majority of states primarily rely upon a “best interests” test, while eliminating any analysis of good and/or bad faith on the part of the custodial parent seeking to relocate.
Justice Patterson found that a determination of whether relocation to another state would be in the “best interests” of the child would be the only determination necessary for a court to make. Now, the trial court need not make a determination regarding the “good faith” of the parent seeking to relocate.
Although it is too soon to determine how the trial courts will interpret the court’s new ruling under Bisbing, this new case will no doubt have a groundbreaking impact on parents’ rights when it comes to relocation.