[Updated on 12/4/2017 for the NJ Supreme Court’s Decision]
Relocation of a child with a custodial parent is one of the most challenging elements of a divorce (or post-judgment action in a divorce). If the noncustodial parent objects to the relocation (or in more a legal term, removal of the child), the court had a difficult decision to make. Many parents come to mediation and discuss either immediate relocation or we always cover the process for what happen if a relocation is desired down the road.
The NJ Supreme Court recently decided the case of Bisbing v. Bisbing. In this decision, the Court overturned its previous standard in the Baures case and has now changed the standard for removal or relocation back to the “best interests of the children” and remanded the case to the trial court to make that determination. Details are below (as are the factors in the previous standard, now lined through).
In this case, the couple mediated their divorce, including the custody of their twin daughters. In the marital settlement agreement (MSA), the couple agreed to joint legal custody with the mother being the parent of primary residence. This was stipulated based on the mother not relocating out of state. Six months prior to the MSA being entered as part of the divorce decree, the wife started dating a resident of Utah. Less than 9 months after the divorce, the wife called the husband to tell him she is marrying the man in Utah and requested his permission on the relocation. He said she could move but would have to leave the children with him. The wife then filed a motion that the trial court granted without a plenary hearing (a hearing with all parties present). She went on vacation to Utah with the children then relocated three days later.
Generally speaking, contract law will control in a divorce. If the couple agrees to terms on financial and parenting issues, and they were not unconscionable or agreed to under duress, the court will uphold that agreement. The one area that may not apply, however, is parenting. While married parents have the full right to raise their children in the way they best see fit (abuse and neglect excepted) without governmental interference, divorcing (or unmarried) parents do not have that same right unless they agree upon everything. When they can’t, the court gets to make those decisions under a legal concept called parens patriae — the government’s power of protection. Instead of contract law applying, the standard becomes best interests of the children. (In NJ, both parents also have equal parenting rights.)
The default in relocation cases used to be “no.” But with society becoming more mobile, the court’s stance on removal has changed. A 2001 case, Baures v. Lewis (167 NJ 91), lays out 12 factors a judge should analyze regarding removal/relocation. They are: The reasonsgiven for the move; The reasonsgiven for the opposition; 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; Whether the child will receive educational, health and leisure opportunities at least equal to what is available here; Any special needs or talents of the child that require accommodation and whether such accommodation or its equivalent is available in the new location; 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; The likelihood that the custodial parent will continue to foster the child’s relationship with the noncustodial parent if the move is allowed; The effect of the move on extended family relationships here and in the new location; If the child is of age, his or her preference; 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; Whether the noncustodial parent has the ability to relocate; Any other factor bearing on the child’s interest. In addition, the moving party (the one making the request to relocate) has the burden of proof to show that: There is a good faith reason for the move and That the move will not be inimical (harmful) to the child’s interests. In the Bisbing case, the appellate court remanded the case for a plenary hearing using the Baures factors. The wife will also need to show that she entered into the MSA in good faith. In other words, did she know there was a good likelihood she would be moving to Utah at the time she entered into the agreement?
Mediation is a good process to discuss a relocation and to see where there may also be room for compromise. If a court “makes the call,” one parent is likely to be very disappointed in the results and appeals are expensive. Mediation addresses the interests of the parties (including the children), not just the law which is all a court will look at. If you want to mediate your divorce, custody or any relocation issues with an experienced divorce and family mediator, please contact me.