The New Jersey Supreme Court completely changed the standard for a parent who wants to relocate with a child from New Jersey to another state. In a surprise, and clearly one of the biggest custody cases handed down in years, the New Jersey Supreme Court today in Jaime Taormina Bisbing v. Glenn R. Bisbing, III introduced a new standard for those parents that are seeking relocation with children out of the state of New Jersey.
The starting point for a contested relocation case requires a court to start at N.J.S.A. 9:2-2. This Statute provides in pertinent part:
“that minor children of parents divorced, separated or living separate… “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.”
This means that you need the consent of the other parent (usually in writing) or a court order. If you can not get the other parent to consent, it becomes a contested hearing and the court looks to the seminal case for relocations matters in New Jersey, Baures v. Lewis, 167 N.J. 91, 118-20 (2001). The Baures case has been the standard for the last 16 years. This case held that a parent with primary custody seeking to relocate children out of state over the objection of the other parent must demonstrate:
- there is a good-faith reason for an interstate move; and,
- that it “will not be inimical to the child’s interests.
In laymen’s terms this mean that if a custodial parent could show that she/he had a good faith reason for the move and that the move would not significantly harm the child, then the move would be approved. Under the old standard, visitation is not an independent prong of the standard, but an important element of proof on the ultimate issue of whether the child’s best interests would suffer from the move. So, if the parent who wants to relocate can prove this, then the burden would switch to the non-custodial parent, who must: “Produce evidence opposing the move as either not in good faith or inimical to the child’s interest.” This could have been accomplished for instance by showing the custodial parent’s past actions to disrupt the child’s relationship with the non-custodial parent or that the opportunities available in the new location are inferior to those available in the child’s current location or that the move will take the child from a large extended family.
Now, the standard is completely different. The top court in New Jersey, our Supreme Court, in theBisbing case overturned the Baures standard, Justice Anne Patterson, writing for the court in Bisbing, said trial judges should now simply determine whether a relocation would be in the “best interests” of the children involved. The standard in much higher that the “Baures“ standard where the relocating parent had to merely show that it would not be inimical to the child’s interests”.
Justice Patterson said the abandonment of the Baures standard was “not lightly” done, in part because social science research—which had been considered a key factor in deciding Baures—is inconclusive at best, and a child’s best interests should now be the guide.
Now a parent now proceeds under the new standard is difficult to predict and time will tell. One thing is certain, these cases are now extremely more complicated and can be tricky if you do not provide the correct information to the court.
Now a trial court will review the best interest standards and is essentially making an award of custody. Under the Bisbing standard, a court has to consider but is not limited to the following factors:
- The parents’ ability to agree, communicate and cooperate in matters relating to the child.
- The parents’ willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse.
- The interaction and relationship of the child with its parents and siblings.
- The history of domestic violence, if any; the safety of the child and the safety of either parent from physical abuse by the other parent.
- The preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision.
- The needs of the child.
- The stability of the home environment offered.
- The quality and continuity of the child’s education.
- The fitness of the parents.
- The geographical proximity of the parents’ homes.
- The extent and quality of the time spent with the child prior to or subsequent to the separation.
- The parents’ employment responsibilities.
- The age and number of the children. A parent shall not be deemed unfit unless the parents’ conduct has a substantial adverse effect on the child.
See N.J.S.A. (New Jersey Statutes 9:2-4), which is the custody best interest standard.