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Child Custody Laws in NJ: Whether Non-Relocation Clauses Matter Pursuant to Bisbing v. Bisbing

The Bisbings entered into a Marital Settlement Agreement (MSA) that contained specific provisions about relocation of the children. The provision was quite detailed, including specifics about proximity of local relocation distance limits as well as out of state relocation requiring agreement of the parties or court order. The parties considered relocation for employment purposes, though not for re-marriage. At the lower court level, the parties agreed that the children’s quality and style of life are equally provided by both parents.

The lower court allowed relocation of the children, to Utah, with the mother. There was no hearing whatsoever on the issue of relocation. The lower court made a further order for a parenting plan, again, with no hearing whatsoever.  The father appealed. The Appellate Division of the New Jersey Superior Court’s decision returned the case to the lower court to hear the matter and apply the appropriate standards in so doing. Unfortunately, it did not return the children to New Jersey while the matter was pending.

One of the pivotal issues in this appeal was whether the wife had acted in good faith in the negotiation of a settlement agreement, including custody and a non-relocation provision. Looking at the timeline of events, it is clear why that was an issue. Here are the basic facts:

  • Both parties were highly paid professionals with wife having the higher income
  • Married in 2005
  • 2007ish, twin girls born
  • August, 2013: Parties separate
  • November, 2013: Mother begins relationship with man in Utah
  • March 8, 2014: Parties enter into MSA
  • April 16, 2014: Final Judgment of Divorce, incorporating MSA
  • May 16, 2014, approx.: Mother advises father that she is leaving her job on July 1, 2014 to be a full time mother
  • July 1, 2014: Mother leaves highly paid professional employment
  • January 8, 2015: Mother advises father of her intent to marry Utah man and asks for permission to relocate (as MSA requires); permission is refused
  • March 16, 2015: Mother files motion seeking relocation to Utah
  • April 24, 2015: Court grants relocation without a hearing, sends to mediation for scheduling parenting plan. Mediation fails.
  • July 14, 2015: Court issues order for parenting time and communication, using most of the suggestions put forth by the mother; again, no hearing
  • 11 days later: Mother takes the girls to Utah for a “vacation”
  • 3 days after leaving for vacation, she permanently relocates to Utah with children
  • Father appeals the April 24 and July 14, 2015 decisions of the lower court
  • April 6, 2016: The Appellate Court sends the case back to the lower court for a plenary hearing pursuant to the standards set forth in its decision

The good faith question is, in part, the fact that relocation sought at an initial custody determination is a different, and often more difficult, standard than the standard used for a subsequent relocation request. Did the mother act in good faith in negotiating the MSA, or was it just a tool to make the relocation standard easier for her when she was ready to go?

That standard for relocations not part of original custody decrees, referred to as the Baures standard, puts the burden of proof upon the party seeking relocation to prove that (1) there is a good faith reason for the move and (2) the move will not be “inimical” to the children’s interest, in other words, that the move is not likely to cause damage or have a bad effect on the children. To determine whether the move will damage the children, and is made in good faith, there are twelve factors the court must assess. As stated above, this standard differs from the best interests of the children standard used in cases of an initial custody determination.

The Appellate Division determined that, if bad faith in negotiating the agreement is found, such that the good faith reasons for removal were known at the time of negotiating the agreement or the Mother cannot demonstrate an unanticipated substantial change, then the standard to be applied at a plenary hearing shall be the best interests standard. Also, if the remarriage is shown to have been anticipated, then the non-relocation provision should rule. The last option, if there is no bad faith in negotiation, no anticipation of the marriage and an adequate change of circumstances is shown, then the Baures standard would be applied in the final decision on relocation.

If you need to discuss relocation, call the Law Offices of Peter Van Aulen for a free initial consultation at 201-845-7400.




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