Relocation in the wake of Bisbing

Calendar year 2017 brought with it one of the most marked changes in recent history by way of New Jersey’s Supreme Court decision Bisbing v. Bisbing, 230 N.J. 3019 (2017). The Bisbing case overturned nearly seventeen (17) year’s worth of case law, shifting the standard for parents seeking to relocate with a minor child to a best interests of the child analysis. Specifically, Bisbing did away with the long-standing Baures v. Lewis, 167 N.J. 91, (2001) standard which afforded significant deference to the custodial parent, requiring the moving party to prove by a preponderance of the evidence that (1) there is a good faith reason for their intended move and (2) that the move would not be inimical to the child’s best interests. For well over a decade, Courts subscribing to the Baures standard, which was based significantly upon social science underpinnings, believed that the happiness of a custodial parent would translate to the child, and thus great deference was given to a custodial parent’s desire to move. However, the Supreme Court in Bisbing recognized “special justification,” which ultimately lead to the abandonment of the standard it promulgated in Baures, such that courts in New Jersey are now to be guided by the best interests analysis for all relocation cases in which parents share joint legal custody of a child/children. By conducting a best interests analysis, family court judges will be able to determine “cause” under N.J.S.A. 9:2-2 so as to assess whether a relocation is being initiated, in good faith, by a parent. The Supreme Court went on to conclude that such a fact-sensitive best interest analysis affords both parents the right to be equally respected in custody determinations, while placing the needs of the child/children at the forefront.

Pursuant to Bisbing, a parent seeking to relocate out-of-state with a child/children, now has the burden to establish that it is in the child’s best interest for a Court to grant such removal. From a legal perspective, while this standard seeks to place both the moving party, and the objecting party, on equal playing field, in practicality, it would seem to place the greater burden upon the parent seeking to move. While it is anticipated that much of the subjectivity and posturing will be removed, i.e. mind-reading pre-judgment as to whether a party anticipated a relocation during the negotiating of a custody agreement or counting overnights and parenting time to determine applicable standards, the singular inquiry as to the best interests of the child/children is now the singular factor Court’s must examine, placing the burden squarely on the shoulders of the party seeking to relocate.

While the standard for relocation might have become more bright-line, and consequently, in many respects more stringent, the Supreme Court has nonetheless recognized the fact-sensitive nature associated with relocation cases, and has made clear that Court’s must consider the statutory factors set forth in N.J.S.A. 9:2-4(c) as well as any other evidence that might have a bearing upon a party’s desire to relocate.

Individuals should consult with counsel relative to both pre and post-judgment concerns relative to out-of-state moves so that fact sensitive and case specific analysis can be discussed.


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