Edward R. Weinstein, Esq.

May I Move With My Child From New Jersey To Another State?

This is a red-hot issue for New Jersey lawyers, judges and child custody experts alike. This is because New Jersey law has recently changed the legal standard regarding a parent’s ability to move from New Jersey to another state. Previously, a judge of a New Jersey Family Court would consider the parent was moving away “in good faith” and is it in the best interest of the child. However due to the following new case that they attorneys at our law firm have studied with a close eye, the new stand is only whether or not the move would be in the best interests of the child.

In Bisbing v. Bisbing, Jaime Taormina Bisbing and Glenn R. Bisbing, III married on August 27, 2005. Twin daughters were born of the marriage on November 17, 2006. During the marriage, Jaime, the wife, commuted to work in New York City while Glenn, the husband, worked in New Jersey. The parties separated in 2013 and constructed a Marital Settlement Agreement (“Agreement”), which was executed on March 8, 2014. The terms of the Agreement stated that Jaime would be the parent of primary residence, meaning the children would live with their mother. According to the Agreement, the twins would visit Glenn one weeknight every other week and stay over Glenn’s house every other weekend. The Agreement also stated that the parties would share joint legal custody, meaning that Jaime and Glenn would decide together on important issues regarding their children. The Agreement provided a holiday parenting schedule and allowed both parents to attend all events relating to the children. The Agreement also addressed the issue of relocation. The relocation provision stated that the parties would notify each other if there was a change in residence, and that neither party would move out of New Jersey with the children without written consent from the other parent.

The Family Part of the Superior Court of New Jersey entered a Judgment of Divorce on April 16, 2014 and included the parties’ Agreement in the judgment. Following the divorce, the parties were laidback with the terms of the Agreement. Glenn’s parenting time was usually longer than agreed to and the twins often stayed over Glenn’s house during the week. Glenn also helped the twins get ready for school in the mornings. The parties were both extremely involved in their children’s lives and participated in their after-school activities.

Jaime began dating Jake Fackrell sometime before Jaime and Glenn were divorced. Jake lives in Utah and manages his business in Idaho. Jake began supporting Jaime financially in July of 2014 so that Jaime could resign from her job and spend more time with the children. Jaime often took the twins to Utah to visit Jake and Jake’s children.   Glenn’s parenting time and access to the twins became restricted once Jaime resigned from her job. On January 8, 2015, Jaime informed Glenn that she planned on marrying Jake and moving to Utah with the children. On June 29, 2015, Jaime and Jake were married. At this time, Jaime asked Glenn to agree to the relocation of the twins to Utah, but Glenn stated that the twins must stay in New Jersey.

After unsuccessful negotiations, Jaime filed a motion in line with N.J.S.A. 9:2-2. Jaime sought an order allowing her to move to Utah with the twins permanently, or an order that allowed her to temporarily move to Utah with the twins pending a plenary hearing, which occurs when material facts of a case are at issue and the testimony of the parties is necessary to decide such issues. Jaime filed a certification with her motion that stated that she intended to marry Jake and that Jake’s work prevented him from moving to New Jersey. The certification also stated that the twins would receive a better education in Utah, especially since they were unhappy with their school in New Jersey. Jaime informed the court that Glenn would still be able to see the twins in both New Jersey and Utah, and that there would be easy access to communication. Jaime argued that the move would not be harmful to the children’s interest under the Baures standard, which states that when parents share custody, the trial court should determine if the moving parent has a good faith purpose for the move and that the move will not harm the child’s interests. Although Glenn argued that Jaime settled the Agreement in bad faith, the trial court, without having a plenary hearing, granted Jaime’s motion to relocate to Utah, provided the parties agree to a visitation plan. The trial court determined that Jaime had a good-faith motive for relocating and that the move would not harm the twin’s interests.

Jaime moved to Utah with the twins and Glenn appealed the trial court’s granting of the order. The New Jersey Appellate Division reversed the trial court’s decision and sent the issue back down for the trial court to hold a plenary hearing. The Appellate Division determined that there was an issue of material fact as to whether Jaime negotiated the Agreement in good faith.   The Appellate Division indicated that good faith was an issue because Jaime was involved with Jake when she signed the Agreement, and Jaime resigned from her job and filed for relocation shortly after the parties agreed that Jaime would be the custodial parent. Therefore, the Appellate Division ruled that the motion should be decided under the best interests standard rather than the not harmful to the children’s interest standard of Baures if the trial court found that Jaime acted in bad faith or if Jaime failed to show a change in circumstance. Jaime then moved back to New Jersey with the twins. Glenn and Jaime agreed that Jaime and the children could live with Jaime’s mother in Pennsylvania near the New Jersey border.

The Supreme Court of New Jersey granted Jaime’s petition for certification. The Court analyzed the trial court’s application of N.J.S.A. 9:2-2, which discusses child custody of separated or divorced parents. The Court noted that a custody plan approved by the trial court is subject to amendment based on a parent’s changed circumstances, with the court deciding custody based on the best interest standard of N.J.S.A. 9:2-4. The Court also stated that N.J.S.A. 9:2-2 demands a showing of “cause” in order for a court to allow the relocation of a child without the consent of both parties. The Court noted that to determine “cause”, the custodial parent’s ability to freely move must be balanced with the best interests of the child and the opposing interests of the parent of alternate residence. The Court then described the evolution of the Baures standard, which states that “cause” is established if the parent seeking relocation showed good faith and that relocating would not be harmful to the child’s interest.

The Supreme Court of New Jersey held that there is justification for departing from the Baures standard. The Court found that the majority of states utilize a best interests standard when determining relocation. The Court noted that some courts have even rejected the assumption that the best interests of the child lie with the parent of primary residence. The Court stated that the purpose of N.J.S.A. 9:2-4 is to promote the best interests of the child, and that the parent of primary residence should meet those needs. Ultimately, the Court held that the Baures standard should be replaced with a best interests standard to decide “cause,” under the statute, in all relocation cases in which parents share legal custody.

If you or a loved one faces a similar situation, our law firm stands prepared to protect your relationship with your child.