To Relocate, or Not to Relocate; Was That Even the Intriguing Question in <b><i>Bisbing</i></b>?

Prior to Bisbing, New Jersey state courts had very clearly articulated tasks to perform when evaluating the situation of a parent asking to move outside of the state with a child. The first layer of analysis turned on the custodial arrangement: Did the parents share physical custody, or was one parent designated as the parent of primary residence? If the parents had a shared physical custodial arrangement, the court would make a best-interest analysis in determining whether a parent could relocate outside of the state with a child. O'Connor v. O'Connor, 349 N.J. Super. 381 (App. Div. 2002). However, if the parents did not share physical custody of the child, and one parent was the primary parent, there was an entirely different, two-part analysis. In accordance with Baures vs. Lewis, 167 N.J. 91 (2001), the court would first make a determination that the request to move was made with a “good faith” reason, and then make a second determination that the proposed move was “not inimical to the child's interests” and would not “adversely affect” the non-moving parent's visitation (now referred to in New Jersey as parenting time).

To be sure, the Baures standard did not instruct the court to determine that the move was affirmatively in the child's best interest but, rather, just that the move not be contrary to the child's best interests. In evaluating the second prong — namely, that the move not be inimical to the child's interests — 12 non-exhaustive factors were delineated.

Other States, Compared

New Jersey necessarily created a standard lesser than the broad concept of the “best interest” of the child in utilizing the afore-stated Baures standards, which were based on the then-state of social science. When looking at how other states approached the issue of a custodial parent relocating, however, it appears that New Jersey was in the minority.

New York, for example, is a best-interest state. While it does delineate factors that are akin to those set out in Baures — namely, New York questions whether the noncustodial parent will lose meaningful access to the child and asks what the moving parent's reason for the move is — the ultimate decision on whether or not to permit a custodial parent to relocate is the child's best interest. So, while courts in New York are free to consider all relevant factors and afford them the appropriate weight, the key factor is whether the move is in the child's best interest (Tropea v. Tropea, 87 N.Y.2d 727 (1996)), and it is the relocating parent's burden to prove that this is so. (At first blush, New York's query may appear similar to the now-replaced Baures standard, but it is not. The Baures decision turned on the move in that case not being contrary to the child's best interest. New York affirmatively looks to the child's best interest. As will be shown in Bisbing, discussed in detail below, there is a significant difference.)

By way of another contrary example, in the leading case in Texas, Lenz v. Lenz, 79 S.W.3d 10 (2002), the Texas Supreme Court looked to three other states — New Jersey, New York, and California — in making a decision on how to treat the issue of relocation. There, the Texas Supreme Court gave consideration to the social science relied on by New Jersey as noted in Baures — specifically, that there is a link between the best interests of the custodial parent and the best interests of the child. (However, this is the very same social science which was later shown to be unpersuasive.) The Texas Supreme Court's reference to the Baures social science-based reasoning is purely anecdotal, because it is clear that Texas also took the best interest approach in determining a request to relocate in Lenz.

By statute, Arizona relies on the best-interest standard as well. Specifically, if parents share legal custody (decision-making) or time, the child's best interest is the paramount consideration in deciding whether a move out of state will be authorized. Ariz. Rev. Stat. Ann. § 25-408(A)(G).

Ohio goes even one step further: If a parent wishes to relocate with a child “to a residence other than the residence specified in the parenting time order or decree of the court,” he or she must seek permission, and the court is to apply the best-interest standard. Ohio Rev. Code Ann. § 3109.051(G)(1). This Ohio statute goes beyond the issue of relocation out of the state to address any relocation, whether in-state or out.

The applicable Florida statute effectively is a hybrid of the old-New Jersey approach (as expressed in Baures) and the new-New Jersey approach (as expressed in Bisbing): The burden is undoubtedly on the relocating parent to show that it is in the child's best interest to make the proposed move. If that burden has been met, the opposing party must then show that relocation is not in the child's best interest. In assessing the child's best interest, the statute provides many factors for consideration, which look markedly similar to those outlined in Baures. Fla. Stat. § 314. 61.13001(7) and (8) (2017). There is no presumption in favor of or against relocation. It now seems that this approach is in the minority.

Bisbing Brings Changes

This past summer, Bisbing changed the landscape in New Jersey, bringing it into line with the majority of the states.

The heart of the factual issue in the case surrounded an initial custody agreement that prohibited either parent from moving out of the state without the other's consent. This was a provision within an agreement contracted for by the parties, not one imposed by the court.

Because the parties had agreed not to relocate, the parent opposing the move argued that there was fraud by the other in negotiating the terms of the custody agreement. From that issue flowed the debate as to which legal standard should be applied — traditional best interest, or Baures factors. The New Jersey Supreme Court took the case as an opportunity to reevaluate the Baures factors, depart from its previous holding 16 years earlier, and redefine the legal standard for a relocating parent. As detailed within the holding in Bisbing, New Jersey will hereafter apply the same “best-interest” factors and considerations in a relocation cases as it does in any other custody dispute.

In arriving at its precedential holding, the New Jersey Supreme Court revisited its initial analysis in the now-overturned Baures decision. Significantly, at the time Baures was decided, there was social science research that tended to support the proposition that what is good for the custodial parent is good for the child. Stated another way, if the relocation would be good for the moving party, so too would it be good for the child. Additionally, there was research to suggest that a certain parenting time schedule is not necessary for a child to feel the love and support of the noncustodial parent. The Baures court also looked to trends within the country.

In Bisbing, the New Jersey Supreme Court found that, with the passage of time and upon further reflection, the previously relied-upon social science research was not sound, and did not apply to every family (or even to most families). New research had supplanted the beliefs that had formed the basis of the Baures holding. Additionally, the perception of a nationwide trend toward a custodial parent's right to relocate had not materialized, as expected by the Baures court.

The Reception

Now, just a few months after the Bisbing decision was rendered, the holding seems axiomatic, at least for a family law practitioner in New Jersey. Of course a court should view a parent's request to relocate outside of the state the same way it does virtually every other decision or issue relating to the custody, care and welfare of a child — by determining what is in the child's best interest. It seems counterintuitive that there would be a lesser burden in moving a child outside of the state than when making an initial custody determination. In this vein, the holding in Bisbing appears to be the right and just result, and it certainly is in line with the majority of the country.

In addition to the thought-provoking issues that Bisbing addresses on the merits of relocation, it also raises another question: When can (or should) a state's highest court reverse its own prior ruling? When may it be appropriate for a court to acknowledge that a prior holding is not working, or never did? Bisbing provides some guidance, and we will explore this question next month in Part Two.

*****
Laurence J. Cutler, a member of this newsletter's Board of Editors, is of counsel with Laufer, Dalena, Cadicina, Jensen & Boyd, LLC, Morristown, NJ. Alyssa M. Clemente is an associate with the firm.

As of August 2017, the seminal case in New Jersey deciding the issue of the appropriate legal standard for a divorced parent seeking to relocate outside of the state is Bisbing v. Bisbing , __ N.J. ___ (2017). This case is an important example that can be used to explore this topic throughout the country. Not only did it redefine the legal standard to be applied when a parent seeks to relocate, but the New Jersey Supreme Court did so, effectively, sua sponte, with only slight presentation of the issue by an amicus. That is to say, the court reversed its own prior decision when that was not the precise issue being appealed.

Because of this, two thought-provoking issues arise: First, there is the substantive issue addressing the standard for a custodial parent seeking to relocate outside of a state, and, second, there is the institutional issue of a state's highest court changing an earlier, precedential decision. The first of these issues is discussed herein, while the second issue will be explored more fully in Part Two of this article.

The Old Baures Standard

Prior to Bisbing, New Jersey state courts had very clearly articulated tasks to perform when evaluating the situation of a parent asking to move outside of the state with a child. The first layer of analysis turned on the custodial arrangement: Did the parents share physical custody, or was one parent designated as the parent of primary residence? If the parents had a shared physical custodial arrangement, the court would make a best-interest analysis in determining whether a parent could relocate outside of the state with a child. O'Connor v. O'Connor , 349 N.J. Super. 381 (App. Div. 2002). However, if the parents did not share physical custody of the child, and one parent was the primary parent, there was an entirely different, two-part analysis. In accordance with Baures vs. Lewis, 167 N.J. 91 (2001), the court would first make a determination that the request to move was made with a “good faith” reason, and then make a second determination that the proposed move was “not inimical to the child's interests” and would not “adversely affect” the non-moving parent's visitation (now referred to in New Jersey as parenting time).

To be sure, the Baures standard did not instruct the court to determine that the move was affirmatively in the child's best interest but, rather, just that the move not be contrary to the child's best interests. In evaluating the second prong — namely, that the move not be inimical to the child's interests — 12 non-exhaustive factors were delineated.

Other States, Compared

New Jersey necessarily created a standard lesser than the broad concept of the “best interest” of the child in utilizing the afore-stated Baures standards, which were based on the then-state of social science. When looking at how other states approached the issue of a custodial parent relocating, however, it appears that New Jersey was in the minority.

New York, for example, is a best-interest state. While it does delineate factors that are akin to those set out in Baures — namely, New York questions whether the noncustodial parent will lose meaningful access to the child and asks what the moving parent's reason for the move is — the ultimate decision on whether or not to permit a custodial parent to relocate is the child's best interest. So, while courts in New York are free to consider all relevant factors and afford them the appropriate weight, the key factor is whether the move is in the child's best interest ( Tropea v. Tropea , 87 N.Y.2d 727 (1996)), and it is the relocating parent's burden to prove that this is so. (At first blush, New York's query may appear similar to the now-replaced Baures standard, but it is not. The Baures decision turned on the move in that case not being contrary to the child's best interest. New York affirmatively looks to the child's best interest. As will be shown in Bisbing, discussed in detail below, there is a significant difference.)

By way of another contrary example, in the leading case in Texas, Lenz v. Lenz , 79 S.W.3d 10 (2002), the Texas Supreme Court looked to three other states — New Jersey, New York, and California — in making a decision on how to treat the issue of relocation. There, the Texas Supreme Court gave consideration to the social science relied on by New Jersey as noted in Baures — specifically, that there is a link between the best interests of the custodial parent and the best interests of the child. (However, this is the very same social science which was later shown to be unpersuasive.) The Texas Supreme Court's reference to the Baures social science-based reasoning is purely anecdotal, because it is clear that Texas also took the best interest approach in determining a request to relocate in Lenz.

By statute, Arizona relies on the best-interest standard as well. Specifically, if parents share legal custody (decision-making) or time, the child's best interest is the paramount consideration in deciding whether a move out of state will be authorized. Ariz. Rev. Stat. Ann. § 25-408(A)(G).

Ohio goes even one step further: If a parent wishes to relocate with a child “to a residence other than the residence specified in the parenting time order or decree of the court,” he or she must seek permission, and the court is to apply the best-interest standard. Ohio Rev. Code Ann. § 3109.051(G)(1). This Ohio statute goes beyond the issue of relocation out of the state to address any relocation, whether in-state or out.

The applicable Florida statute effectively is a hybrid of the old-New Jersey approach (as expressed in Baures) and the new-New Jersey approach (as expressed in Bisbing): The burden is undoubtedly on the relocating parent to show that it is in the child's best interest to make the proposed move. If that burden has been met, the opposing party must then show that relocation is not in the child's best interest. In assessing the child's best interest, the statute provides many factors for consideration, which look markedly similar to those outlined in Baures. Fla. Stat. § 314. 61.13001(7) and (8) (2017). There is no presumption in favor of or against relocation. It now seems that this approach is in the minority.

Bisbing Brings Changes

This past summer, Bisbing changed the landscape in New Jersey, bringing it into line with the majority of the states.

The heart of the factual issue in the case surrounded an initial custody agreement that prohibited either parent from moving out of the state without the other's consent. This was a provision within an agreement contracted for by the parties, not one imposed by the court.

Because the parties had agreed not to relocate, the parent opposing the move argued that there was fraud by the other in negotiating the terms of the custody agreement. From that issue flowed the debate as to which legal standard should be applied — traditional best interest, or Baures factors. The New Jersey Supreme Court took the case as an opportunity to reevaluate the Baures factors, depart from its previous holding 16 years earlier, and redefine the legal standard for a relocating parent. As detailed within the holding in Bisbing, New Jersey will hereafter apply the same “best-interest” factors and considerations in a relocation cases as it does in any other custody dispute.

In arriving at its precedential holding, the New Jersey Supreme Court revisited its initial analysis in the now-overturned Baures decision. Significantly, at the time Baures was decided, there was social science research that tended to support the proposition that what is good for the custodial parent is good for the child. Stated another way, if the relocation would be good for the moving party, so too would it be good for the child. Additionally, there was research to suggest that a certain parenting time schedule is not necessary for a child to feel the love and support of the noncustodial parent. The Baures court also looked to trends within the country.

In Bisbing, the New Jersey Supreme Court found that, with the passage of time and upon further reflection, the previously relied-upon social science research was not sound, and did not apply to every family (or even to most families). New research had supplanted the beliefs that had formed the basis of the Baures holding. Additionally, the perception of a nationwide trend toward a custodial parent's right to relocate had not materialized, as expected by the Baures court.

The Reception

Now, just a few months after the Bisbing decision was rendered, the holding seems axiomatic, at least for a family law practitioner in New Jersey. Of course a court should view a parent's request to relocate outside of the state the same way it does virtually every other decision or issue relating to the custody, care and welfare of a child — by determining what is in the child's best interest. It seems counterintuitive that there would be a lesser burden in moving a child outside of the state than when making an initial custody determination. In this vein, the holding in Bisbing appears to be the right and just result, and it certainly is in line with the majority of the country.

In addition to the thought-provoking issues that Bisbing addresses on the merits of relocation, it also raises another question: When can (or should) a state's highest court reverse its own prior ruling? When may it be appropriate for a court to acknowledge that a prior holding is not working, or never did? Bisbing provides some guidance, and we will explore this question next month in Part Two.

*****
Laurence J. Cutler, a member of this newsletter's Board of Editors, is of counsel with Laufer, Dalena, Cadicina, Jensen & Boyd, LLC, Morristown, NJ. Alyssa M. Clemente is an associate with the firm.