New Family Law Alert: The Supreme Court Weighs In On Out-of-State Relocation Requests


Last week, in Bisbing v. Bisbing, the New Jersey Supreme Court recognized a “special justification” for abandoning the standard it established in the 2001 case of Baures v. Lewis for contested relocation determinations pursuant to N.J.S.A. 9:2-2. We blogged about this case back in April 2016 when the Appellate Division issued a published decision acknowledging the seemingly unfair and somewhat harsh reality of the laws of this State; i.e., once a parent obtains primary residential custody, he or she is in a much better position to obtain an Order permitting an out-of-state relocation than a non-custodial parent seeking the same relief.

As we explained previously, under Baures, the moving party was first required to show there was a good faith reason for the move. This could be satisfied with something as simple as a better job offer. Then, that party simply had to demonstrate that the move would not be “inimical”, or detrimental, to the child’s interests. There are 12 factors a court must assess in conducting a Baures analysis, but overall the standard is relatively easy to meet. On the other hand, a non-custodial parent seeking to relocate with the children was subject to a different standard, because he or she was essentially asking the court for a total change in custody. Under those circumstances, the request was determined by conducting a “best interest of the child” analysis – a much more difficult standard to meet. Not only did this create an unfair presumption in favor of the custodial parent, ultimately placing the parties on unequal footing in relocation disputes, but it also negatively impacted settlement negotiations between parties by giving new meaning to the traditional custodial designations set forth in final marital settlement agreements.

In last week’s opinion, the Supreme Court expressly departed from its precedent, holding that in place of the Baures standard, courts must instead conduct a best interests analysis to determine “cause” under N.J.S.A. 9:2-2 in all contested relocation disputes in which the parents share joint legal custody – whether the custody arrangement designates a Parent of Primary Residence and a Parent of Alternate Residence, or provides for an equal time sharing arrangement. “Cause” should be determined by a best interest analysis in which the Court will consider the same 12 factors already set forth in N.J.S.A. 9:2-2(c), along with any other supplemental factors it deems appropriate. In so doing, the Court acknowledged the social science research discrediting the previous standard applied by Courts under Baures, as well as the “growing trend in the law easing restrictions on the custodial parent’s right to relocate with the children.”  The Court also made clear that the purpose of this new standard was to comport with New Jersey’s custody statute “in which the Legislature unequivocally declared that the rights of parents are to be equally respected in custody determinations.” Time will tell whether the change actually has the intended effect of furthering this public policy.

Related Practices:   Family Law Services

Related Attorney:   Sean Alden Smith, Carl J. Soranno