In New Jersey, family law cases always provide courts the opportunity to create new law, particularly when it comes to child custody laws in NJ. One very recent case, Bisbing v. Bisbing, added an interpretation for what is necessary to establish “cause” to allow a child to permanently relocate out of state with the child, even if the other parent objects to the move.
The parties agreed to a marital settlement agreement when they separated. The agreement included that the mother, Jaime, would have primary residential custody with their twin daughters. The agreement also mentioned a relocation provision, stating that “[n]either party shall permanently relocate with the Children from the State of New Jersey without the prior written consent of the other.” About a year after the divorce was final, Jaime told her ex that she intended to marry another man, who lived in Utah. Significantly, the wife had been dating this gentlemen prior to the resolution of the agreement. She requested that her ex-spouse consent to the relocation of the children with her to Utah. Her ex-husband said she was free to go, but the children must remain in New Jersey with him.
Plaintiff went to court, filing a motion under N.J.S.A. 9:2-2, requesting that she be allowed to permanently relocate to Utah with her children. In response, her ex-husband argued that she had negotiated the agreement in bad faith, knowing she was planning on relocating without telling him so he would agree to give her primary residential custody. Child custody laws in NJ at the time, under the Baures standard, required the parent who is requesting relocation despite opposition from the other parent to show that there is a good-faith reason to move and that it will not negatively affect the child’s interests. At trial, the court agreed that the move was in good faith and the children would not be harmed by it, and granted plaintiff’s request. She promptly moved to Utah, and enrolled the children in school.
On appeal, the court reversed the trial court and remanded for a plenary hearing, finding that there was a genuine issue of material fact if the plaintiff had actually negotiated the initial agreement in good faith. If it was determined that she had negotiated the agreement in bad faith, then child custody laws in NJ require that for relocation cases, the standard should be the ‘best interest of the child’, a more stringent requirement, than that of negatively impacting the children. After this decision, plaintiff returned to New Jersey, where the trial court denied her motion for a stay, and required the parties to abide by the provisions they had set in the agreement.
On appeal here, the court departed from the jurisprudential test of Baures. Child custody laws in NJ are designed to ensure continuing and frequent contact between parents and children after a separation or divorce. Under this particular statute, N.S.J.A. 9:2-2, it requires a showing of ‘cause’ before a court can allow a parent to remove the children permanently to another jurisdiction without permission from both parents, or the consent of the child if old enough. Under Baures, the burden was eased on the custodial parent, holding that if the party who wanted to relocate was the custodial parent, then cause would be establish if they could show good faith in the move and that it would not be inimical to the interests of the children. The courts had held in previous cases, however, that if a request to relocate comes shortly after the settlement and final judgment, and the party asking for relocation knew of the facts and circumstances for relocation at the time of entry of the judgment, then the best interests standard should apply, rather than the lowered Baures standard. The panel adopted this standard, the court on appeal then reconsidered whether the Baures standard should remain the benchmark in relocation cases.
The court rarely overrules itself. It went through a significant analysis, acknowledging that the social science upon which the Baures court relied had since been criticized by other scholars. It found that social scientists who study relocation impact on children do not have a firm consensus, and therefore, Baures did not encapsulate the general state of families in New Jersey – rather, it applied to a few. In addition to the child custody laws in NJ, the court looked to other states’ laws, finding that most states impose a best interests test when a relocation case comes before the courts. Furthermore, the Baures standard has the potential to create unnecessary arguments between parties, with accusations of a party acting in bad faith by anticipating a relocation before signing any agreement, as seen in the instant case. Furthermore, Baures gives an advantage to the custodial parent by lowering their burden, which could increase litigation in determining the designation of the parent who has primary residential custody. Therefore, the standard should strictly be what is in the child’s best interests.
The court defended its decision to overrule itself by referring to a previous case, Emma v. Evans, which concerned a change in a child’s surname to the objection of the other parent. Before Emma, the standard was a rebuttable presumption that the surname selected by the custodial parent (who is primarily charged with making decisions in the child’s best interest), will be presumed to be in the child’s best interest. Emma abandoned that presumption, and instead, the court used a test which places the parents on equal footing when determining a change in surname.
The court amended the state of child custody laws in NJ by abandoning Baures, instead requiring courts to conduct a best interest analysis to determine ‘cause’ as required under the statute, regardless of which parent is the primary residential custodian. The court determined that lower courts should look to the best interests statute and the factors listed therein when handling relocation cases, along with other evidence to determine the child’s best interests. Furthermore, there is no need to determine whether the initial settlement agreement was determined in bad faith. The court remanded the case to the trial court for an analysis consistent with the opinion.
If you have questions about the evolving child custody laws in NJ, reach out to Peter Van Aulen at the Law Offices of Peter Van Aulen for a free consultation at 201-845-7400.