After parents are divorced, the parent who has physical custody cannot move out of state with the children without first obtaining permission from the family court or the other parent. A recent New Jersey Supreme Court decision, Bisbing v. Bisbing, has changed the way courts decide the issue.  This case has made it more difficult for custodial parents to move out of New Jersey.

Even if a parent has a child custody agreement expressly stating that they are the custodial parent, leaving the state is not part of the arrangement. Custodial parents who leave the state with their children without permission may be subject to kidnapping charges.

Before Bisbing v. Bisbing, New Jersey courts would apply the “Baures test” to decide whether a parent should be granted permission to move out of state. Under Baures, courts assumed that children would be happy in their new home, out of state, if their parents were happy and content. Thus, the parent seeking permission to relocate only needed to show that the move would not bring harm to their child. Now, under Bisbing, courts must consider whether the move is in the best interest of the child.

Best Interests Test

The best interests test is an amorphous, fact sensitive test. It is too early to know whether its application will have a significant impact on relocation cases. The court will consider several factors, which do not apply equally to every family. The judge will essentially decide whether the move is in the best interest of the children. Factors to consider include:

  • Both parents’ ability to cooperate with one another
  • The needs of the child
  • The stability of the new home in the new state or country
  • Parental fitness of both parents
  • Quality and continuity of education
  • Parental employment
  • The age of the children
  • The number of children
  • Geographical proximity of the parents’ homes
  • If the child is of a certain age, usually around 12, the court will consider their own preference
  • Any history of domestic violence
  • Keeping the children safe from abuse
  • A parent’s ability to comply with custody and visitation orders
  • Relationship of the child with both parents

The court has expressly stated that the impact of the move on the non-custodial parent’s visitation was not enough to deny the other parent’s request to move out of state. The custodial parent only needs to demonstrate that they have, in good faith, a reason for requesting to move. The court will then grant the request to move, unless the non-custodial parent can show that the request was not in good faith or not in the child’s best interests.

To schedule a free and confidential consultation, call us today at 856-751-5505 or contact us online. With offices located in Marlton, New Jersey, we represent clients throughout South Jersey, including the communities of Cherry Hill, Medford, Moorestown, Mount Laurel, Princeton, Voorhees and throughout Burlington County and Camden County.