Following a divorce, removal of a minor child from the State of New Jersey by the custodial parent is governed by N.J.S.A. 9:2-2, which, in pertinent part, provides:
When the Superior Court has jurisdiction over the custody and maintenance of the minor children of parents divorced, separated or living separate, and such children are natives of this State, or have resided five years within its limits, they shall not be removed out of its jurisdiction against their own consent, if of suitable age to signify the same, nor while under that age without the consent of both parents, unless the court, upon cause shown, shall otherwise order. [emphasis added]
On August 8, 2017, the New Jersey Supreme Court re-addressed the legal standard for interstate relocation with a child. Pursuant to Bisbing v. Bisbing, the landmark Baures standard for relocation applications was upended – in determining the outcome of contested relocation applications pursuant to N.J.S.A. 9:2-2 in which the parents share legal custody, the Court should now conduct a best-interests analysis to determine whether “cause” exists under the statute. The “best interests” standard should be conducted whether the custody arrangement designates a parent of primary residence and a parent of alternate residence, or provides for equally shared custody.
In Bisbing, the parties agreed to joint legal custody with primary residential custody to the wife so long as she did not remove the children from the State, to live within twenty (20) miles of each other in New Jersey, and that neither party could remove the children from New Jersey without consent of the other party. However, nine (9) months after the Judgment of Divorce, the wife informed her ex-husband that she desired to relocate the children from New Jersey to Utah. In a well-reasoned decision, the Appellate Division determined that a plenary hearing was necessary and, if the negotiation for the non-relocation provision was in bad faith, the more-stringent best-interests-of-the-child standard would apply, as opposed to the Baures factors. On the other hand, if the party alleging bad faith could not demonstrate that bad faith negotiations took place, one of the following tests would be applied: (1) If wife could demonstrate a substantial and unanticipated change in circumstances to warrant avoidance of the agreed-upon non-relocation provision, the Baures analysis would be appropriate; or (2) If wife failed to demonstrate a substantial and unanticipated change in circumstances, the Court must determine the best interests of the children.
Following the Appellate Division’s decision, the wife’s petition for certification was granted, and the New Jersey Supreme Court re-addressed the legal standard for interstate relocation. In deciding to abandon the Baures standard in favor of the more-stringent best-interests analysis, the Supreme Court noted that relocation may affect children in many different ways and also noted the possibility that the Baures standard may lead to unnecessary disputes regarding the designation of the custodial parent. Additionally, the Court determined that N.J.S.A. 9:2-2 does not infringe on the relocating parent’s constitutional right to interstate travel.
Prior to August 8, 2017, the landmark decision of Baures v. Lewis, 167 N.J. 91, 116 (2001), applied to removal applications. Pursuant to Baures, where a parent already exercised primary custody, he or she only was required to demonstrate (1) a good faith reason for the move, and (2) that the move was not inimical to the child’s interests. As set forth in Baures, in assessing whether an application for removal was made in good faith and whether the move would not be inimical to the child’s best interests, the Court was to consider the following factors: (1) the reasons given for the move; (2) the reasons given for the opposition; (3) the past history of dealings between the parties insofar as it bears on the reasons advanced by both parties for supporting and opposing the move; (4) whether the child will receive educational, health and leisure opportunities at least equal to what is available here; (5) any special needs or talents of the child that require accommodation and whether such accommodation or its equivalent is available in the new location; (6) whether a visitation and communication schedule can be developed that will allow the noncustodial parent to maintain a full and continuous relationship with the child; (7) the likelihood that the custodial parent will continue to foster the child’s relationship with the noncustodial parent if the move is allowed; (8) the effect of the move on extended family relationships here and in the new location; (9) if the child is of age, his or her preference; (10) whether the child is entering his or her senior year in high school at which point he or she should generally not be moved until graduation without his or her consent; (11) whether the noncustodial parent has the ability to relocate; and (12) any other factor bearing on the child’s interest.
If you have any questions in regards to divorce in New Jersey, alimony, child support, equitable distribution, or family law, you may wish to consult with an experienced family law attorney. This article is for information purposes only, and is neither legal advice nor the creation of an attorney client relationship.
Justin M. Smigelsky, Esq. / Timothy J. Little, P.C. / 2017 – All Rights Reserved
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Family Law Practice Areas:
Divorce, equitable distribution of assets and liabilities, alimony, domestic violence, child custody, child support, parenting time, emancipation applications, removal applications, Marital Settlement Agreements, post-judgment enforcement and modification applications