The following is a discussion about the recent decision on August 8, 2017 by the New Jersey Supreme Court in Bisbing v. Bisbing, 2017 WL 3392717 (N.J., 2017).

           The law requires there to be an agreement or a Court Order in order for a primary parent to leave New Jersey with the child or children. Often these cases are contentious and require Court involvement as the family, although already not intact, may be separated by many states if relocation is granted.

           The Bisbing decision altered the standard of analysis that Courts must undergo when a primary residential parent requests to relocate from New Jersey to another state. The standard up until this determination was in accordance with Baures v. Lewis which was a case where the parents did not have equal time with the child, 167 N.J. 91 (2001). Before Bisbing, where the parents did not have equal time a court had to determine if the request by the parent of primary residence was made in good faith and not inimical to the child’s best interests for the burden to shift to the parent of alternate residence to then surpass the burden of the move being inimical to the child’s best interest.  O’Connor v. O’Connor, 349 NJ Super 381 and other cases before Bisbing dealt with situations where parents had the children an equal amount of time. In those situations the best interests standard was applied so as to that situation there is no change. 

           The standard now to be applied on all relocation cases is the “best interests of the child” standard as set in N.J.S.A. 9:2-4(a), which states, “[n]otwithstanding any other provisions of law to the contrary, in any action concerning children undertaken by a State department, agency, commission, authority, court of law, or State or local legislative body, the best interests of the child shall be a primary consideration.” Baures discussed the law when the parents spend about equal time with the children. “In order to obtain permission to relocate with a child to a location outside the state, the custodial parent must establish that the relocation is required by the best interest of the child.” Id. Further, Baures states “where the parents share custody either through a decree or agreement of the parties, the application amounts to a motion for a change in custody and the disposition of the petition will be governed by the rules for such a modification.” Ibid. However, now regardless of the residential arrangement and parenting time between the parents, they are to be treated equally if they share joint legal custody, and the entire custodial arrangement is up for review upon a request to relocate by the parent of primary residence.  

           Under Baures while a lower threshold for permission on a request for relocation existed, relocation was not always allowed. However, it was easier and less costly to gain permission then than it will be now. The parent of alternate residence can relocate at will; however, it seems that primary residential parents now have a greater hurdle to face in order to relocate. 

           This decision requires a re-analysis of the custodial determination that treats both parents as equal. The child is of paramount importance in a divorce and in the relocation analysis now under any circumstance. If the parent of primary residence is allowed to move out of state, the non-residential parent who may currently see their child on a regular basis, including participating in activities and ongoing contact may have to fly or drive a long distance. Day to day activities can no longer be shared with the non-residential parent. Communicating with a child via skype is not a replacement for in person parenting time. A child may not want to stop what they are doing to speak to the other parent by phone on a regular basis. The relationship may become stilted. 

           The Bisbing ruling raises the bar for primary parents to leave New Jersey. A full blown best interests/custody analysis is more expensive and time-consuming.  Each party may request to become the primary parent and the Court will be required not to address just the request to move to another state but rather the entire parenting arrangement. This may increase litigation or cause primary parents to forego seeking the right to move, which may have a chilling effect on primary residential parents.  On the other hand, there are instances when it will be found to be in the child’s best interests to relocate such as when the parent is not very involved with the day to day life of the child and may exercise limited time sharing, if the child has special needs that can be better met in another location; if the financial issues enable the child to receive a substantial benefit; where the parties can afford the transportation costs; where significant time can be provided to the parent of secondary residence after the relocation. And the benefit of the move must be shown for both the child and the primary residential parent. 

It was social science research that initiated this change, as experts analysis found that children do better when both parents are available and present with their children. As social science changes, the law changes to reflect the factual underpinnings of case analysis. Prior social science findings held that a happy parent raised a happier child, and that if a primary parent had a good faith reason to move, and the move is not inimical to the child’s best interests, the primary parent and child should be able to relocate. The theory was that as long as contact was maintained between the child and the secondary parent the relocation would not have a negative impact on the child.

The right to relocate seems to remain the same when there is a true shared involvement and the parties share residential custody of the children. Where there is a clear primary parent who has always been the parent, will that parent still be given a fair opportunity to relocate without the risk of losing the primary custodial role that they may have long held? A role that was found to be in the child’s best interest? Should the parent that has always been the child’s primary custodial parent, the constant in addressing the needs of the child, able to continue to serve as the primary parent in another state? And if not, why not? 

           Therefore, this ruling leaves many questions, and it may not be as significant as initially contemplated. For instance, forensic psychologists and psychiatrists have always first addressed the statutory factors, and then looked at the best interests of the child. Their analysis will now be only as to the focus on the child and not on the benefits a relocation will have on the parents. Since all custody cases are ultimately based upon satisfying the best interests of the child Bisbing to a great extent mirrors the existing law.