Supreme Court of New Jersey Departs From Standard Utilized in Custody Relocation Cases

August 14, 2017Alerts Family Law Alert

One of the most hotly contested issues in family law arises when one parent requests, after a divorce, to relocate outside the state with the parties’ children. This creates a clash between one parent’s interest in fulfilling his or her own needs and desires and the other parent’s interest in maintaining a strong and close connection to the children.

Moreover, the issue of relocation is a zero-sum situation; you move or you do not. There is no real window for compromise. If one parent wants to move to California and the other parent objects, moving to Kansas is certainly not a viable solution. For that reason, these post-divorce disputes often end in litigation.

The Supreme Court of New Jersey’s recent decision in Bisbing v. Bisbing overturned well-established jurisprudence addressing the showing required for a custodial parent to establish “cause” for such a move under New Jersey’s relocation statute.

Relocation Law Before Bisbing v. Bisbing

N.J.S.A. 9:2-2 requires a showing of “cause” before a court will authorize the permanent removal of a child to another state without the consent of both parties (or without the child’s consent if the child is of “suitable age” to decide). For the past 16 years, family law practitioners have relied upon the standard spelled out in Baures v. Lewis, 167 N.J. 91 (2001), the leading case on the issue of interstate removal of children.

  • Under Baures, if the parties had a shared custody arrangement, the court analyzed the removal application as a change in custody governed by a “best interests” standard.
  • If however, the court found that the party seeking removal was the primary custodial parent, “cause” would be established under N.J.S.A. 9:2-2 under a more lax standard requiring 1) proof that the request to relocate was made in good faith; and 2) evidence that the move would not be harmful to the child’s interests.
  • In constructing this standard, the Baures court relied upon existing social science research principles that were gaining increased acceptance, including:
    • A belief that what is “good for the custodial parent is good for the child;”
    • That no particular parenting time schedule is necessary for a child to feel loved and supported by both parents; and
    • A “growing trend” and “shift” in relocation laws nationwide easing restrictions on a custodial parent’s right to relocate with the children post-divorce.

Bisbing v. Bisbing

In Bisbing v Bisbing, less than one year after the parties agreed on the designation of custodial parent and proceeded with their divorce, the custodial parent sought to relocate to Utah with the parties’ then 7-year-old twin daughters over the non-custodial parent’s objection.

Without a hearing, the trial court found the custodial parent had met the burden under Baures and permitted the parent to relocate with the children.

The non-custodial parent appealed, and the Appellate Division reversed and ordered the custodial parent and the children to return to New Jersey. A Petition for Certification was filed with the Supreme Court of New Jersey.

Unified Standard for Relocation Under Bisbing v. Bisbing

  • In considering whether to retain the Baures standard as the benchmark for contested relocation determinations, the court recognized that it has always required a departure from precedent be supported by some special justification, such as when “experience teaches that a rule of law has not achieved its intended result.”
  • In reviewing social science since the Baures decision 16 years ago, the court found scholars who study the impact of relocation on children following divorce disagree on how they are affected.
  • The court also noted that while the Baures’ decision relied upon an anticipated shift in the law toward recognition of a custodial parent’s presumptive right to relocate with children, that shift never materialized. The majority of states impose a “best interests” test when considering a relocation application filed by a custodial parent.
  • The court determined that by making custodial status a critical factor in the outcome of interstate relocations, the Baures decision could cause unnecessary disputes between parents during divorce proceedings. “If a designation as the parent of primary residence will determine the result of a relocation dispute, parties may be motivated to contest that designation even if one parent is clearly in a better position to serve that primary role.” Severing the tie between the relocation standard and one party’s designation as primary custodial parent eliminates litigation and the potential for bad faith negotiations.
  • Based on the foregoing, the court found “special justification” to abandon the standard established in Baures, finding that courts should instead conduct a best interests analysis to determine “cause” under N.J.S.A. 9:2-2.
  • The Supreme Court clarified that the best interests standard shall apply to all interstate relocation disputes under N.J.S.A. 9:2-2. In other words, the same standard shall apply to all cases in which the parents share joint legal custody, including ­cases in which one parent is designated as the custodial parent and the other is designated as the non-custodial parent, as well as cases where custody is equally shared by both parents.


The Supreme Court remanded the matter to the trial court for a determination if the custodial parent’s proposed move to Utah was in the children’s best interests. Under Bisbing, there is no longer a need for the court determination of which standard to apply or, to determine, whether one party acted in bad faith. The only question now is whether a proposed relocation is in the children’s best interests under N.J.S.A. 9:2-4(c).

For more information about this alert, please contact Lauren Koster Beaver at 609.844.3027 or [email protected] or any member of the firm’s Family Law Practice.