Bisbing v Bisbing: NJ Supreme Court on Child Relocation

In the case of Bisbing v. Bisbing, the New Jersey Supreme Court made a decision that will impact the ability of divorced parents to take their children out of state. The issue is of increasing importance in a highly mobile society where moving long distances is a real possibility for a huge segment of the population.

The parties in the case were separated parents who had negotiated a settlement whereby the mother would be granted primary custody over the couple’s twin daughters, but also stipulated that “[n]either party shall permanently relocate with the Children from the State of New Jersey without the prior written consent of the other.”

However, about a year after the agreement was finalized, the mother asked the father if she could leave the state to marry a man from Utah. The father said he would let her leave the state only if the children remained in New Jersey with him. He pointed to the fact that she had begun seeing the Utah man prior to the separation agreement as a sign that she had not negotiated in good faith.

The case was decided at trial in favor of the mother. The family courts of New Jersey operated at the time under the Baures standard, which required the party opposed to the move to prove that it was in bad faith and contrary to the children’s interests. The court determined that the father had not proven this. The mother then moved to Utah with the children.

However, the father appealed the decision. The appeals court decided that, if the agreement had indeed been negotiated in bad faith, then the requirement that the children’s welfare be taken into consideration would have to be interpreted more stringently. The mother’s appeal for a stay was denied, and she was forced to move back to New Jersey and abide by the original terms of the agreement.

The court effectively set aside the Baures standard, ruling that the court must show cause before a parent is allowed to permanently children from one geographical location to another. The fact that the mother knew at the time she made the agreement that she would probably leave for Utah showed that she had not negotiated in good faith, and thus a stricter interpretation of the “best interests” standard would have to be applied, as it had in previous cases of bad faith settlements.

The New Jersey Supreme Court took many factors into consideration, including the social scientific research on the subject of child relocation, the laws and rulings of other states, and the fact that the Baures standard tended to clog the court with excessive conflict and litigation. The social science they found contradictory and inconclusive, and pointed out that the social scientific findings that supported Baures had been contradicted by many researchers.

In looking at the laws and case histories of other states, they noted that most states conducted a “best interests” test when considering relocation cases. And they also noted how Baures had so often stirred up conflict in New Jersey courts, with many parents in relocation cases like Bisbing accusing each other of bad-faith negotiation. Moreover, by lowering the burden of the custodial parent, Baures had a tendency to increase parental conflicts over child custody.

The New Jersey Supreme Court also looked at a previous case, Emma v. Evans, in which a dispute between separated parents over a change to a child’s surname occasioned the elevation of both parent’s status to equal footing when deciding a child’s welfare, overturning previous interpretations which favored the custodial parent.

Thus the Baures standard has been overturned in the interpretation of New Jersey family law. Henceforward, the courts will conduct a “best interests” analysis to determine the outcome of child custody relocation cases while disregarding which parent is the primary custodian. There will no longer be any need to determine if custody arrangements were made in good faith or not.

The Bisbing case was remanded back to the trial court for a decision consistent with this opinion. After 33 days of trial and a 192-page decision, the trial judge determined that the mother’s move to Utah would not be in the children’s best interests and denied her request to move the children out of New Jersey.

It’s important to remember that all cases are fact specific and the “best interests” standard must be carefully applied to each case. Anyone with questions about the new state of affairs in child custody relocation cases, or any other matter pertaining to New Jersey family law, should call Jenny Birz at (201) 701-1218 for a comprehensive, in-office consultation.

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