In August 2017, the standards used by the New Jersey family courts when deciding to approve or deny a parent’s request to relocate with their children out of state underwent a significant change, thanks to the landmark ruling of Bisbing v. Bisbing.
How will this switch from the the “old way” of deciding relocation matters — called the Baures factors — to the brand new Bisbing standards affect your plans to move with your kids? Let’s take a look at a typical parent relocation request to find out what’s different now — and what you might expect in your own child relocation matter. Here is Mary and Paul’s story.
Mary and Paul: Can Mary move to California with their two kids?
Mary and Paul were divorced in 2012 and have two children, ages 5 and 7. Mary lives in Saddle Brook and Paul lives in Leonia, about fifteen minutes away by car. Mary has primary physical custody of the children and they live with her full time. Paul has the kids every Friday from 5pm until Sunday at noon. He also has them for dinner every Wednesday for a few hours. Mary and Paul share joint legal custody of the children, meaning they both have a say in the big decisions for the kids, such as major medical decisions and choice of college down the road. They also both have access to doctor and school records and report.
Mary was just offered a much higher-paying job at her company, but it is at the headquarters office in Los Angeles. Mary worked hard for this promotion and really wants to accept. Her goal is to move to California with the kids. When Mary shares the news and her plans with Paul, he is very upset. Paul does not want their children to be moved out of New Jersey. Mary shows him that the new home she’s found to lease is in a safe suburb with great schools and plenty of access to quality medical care and leisure activities for the kids They cannot come to an agreement, however. When this happens, Mary has the right to ask the court to decide for them. Mary pursues this option and files court paperwork asking a judge to hear her relocation request. What will happen next?
Under the “Old Rules” of Baures
Before the newest case on this issue, Bisbing v. Bisbing came down, another case — Baures v. Lewis — set the standard for relocation requests. In Baures, several factors were listed that the courts had to consider when deciding whether or not to allow a relocation. Overall, the parent wanting to move had to show that the move was beneficial for the parent, made in good faith and not harmful to the children. From there, the court could look at other factors if they applied to the family.
For Mary and Paul, it appears as though the move would be beneficial to Mary as she will be starting a higher-salaried job and it does seem that the job is a good faith reason for the move. There is no indication that she is moving to thwart Paul’s parenting time and it does not look like the where she wishes to go would be harmful to the kids. So, the court would look at the other Baures factors such as:
1. The reason given for the move: Mary’s new job, which is reasonable.
2. The reasons given for the opposition: Paul is simply upset that he won’t see the children as often.
3. Past history of dealing between the parents: Mary and Paul have gotten along until now.
4. Whether the children will receive comparable educational, recreational, etc. opportunities: It looks like the area will provide comparable services for the children.
5. Any special needs or talents of the children that require special accommodation that is available in the new location: This does not apply, so the court would not consider.
6. Whether a visitation and communication schedule can be developed that will allow the noncustodial parent to maintain a full and continuous relationship with the children: Paul’s concern that he will not be as involved in the children’s lives is valid. Of course, weekly visits will not be possible if Mary moves. But, Mary needs to provide a comprehensive plan offering large blocks of time with the children and other modes of communication such as Skype and Facetime when age appropriate.
7. The likelihood that the custodial parent will continue to foster the relationship: There is no indication Mary would hamper the relationship between Paul and the kids.
8. The effect of the move on extended family relationships: Are there very involved grandparents? A close aunt? If the relationship is dear to the child and the child may be harmed by having this relationship change, this is a factor.
9. Preference of the child, depending on age: Here, Paul and Mary’s children are too young to express a preference.
10. Whether a child is entering senior year of high school: This does not apply.
11. Whether the non-custodial parent can relocate: Can Paul move to California with Mary and the children? Perhaps his job can offer a relocation package.
12. Any other factor bearing on the children’s interests: A catch-all provision that allows the court to consider any other factor not listed, here.
Will the courts approve Mary’s request to move to California? Chances are: YES. Taking into account the above, it appears as though if Mary provides a healthy parenting plan to Paul, she would be permitted to relocate with the children.
Mary’s Relocation Request Under the “New Rules” of Bisbing
The New Jersey Supreme Court issued a ruling in August of 2017 in the case of Bisbing v. Bisbing. That decision has done away with the Baures factors and the courts, going forward, are not to use those factors in deciding relocation cases. Now, the courts are to use the well-established “best interests of the child standard” that is found in N.J.S.A. 9:2-4. It is a harder standard then the Baures standard and Mary may have a more difficult time proving her case.
Under Baures, parents with primary physical custody, like Mary, were given an easier time when asking to relocate, because the theory was if a parent thrives in the new state, the child will, as well. If parents shared physical custody, however, the “best interests standard” was used. In shared physical custody situations, both parents have equal time with the children and if one moves, that is, in essence a change in custody, not just a relocation.
Best Interests Standard Must Now Be Used In ALL Relocation Cases
As of August 2017, in all relocation cases, even ones where the parents do not have joint physical custody, the more strict “best interests standard” must be used. The factors that the court must consider when determining whether or not a move is in the best interests of the child are:
- The parents’ ability to agree, communicate and cooperate in matters relating to the child: Again, until now, Mary and Paul have gotten along.
- The parents’ willingness to accept custody and any history of unwillingness to allow parenting time that is not based upon substantiated abuse: There is no past animosity or abuse.
- The interactions and relationship of the child with its parents and siblings: Here, Paul would discuss his constant contact and involvement in the children’s lives and how changing that relationship would not be in their best interest.
- Any history of domestic violence: This does not apply.
- The safety of the child and the safety of either parent from physical abuse by the other parent: This does not apply.
- The preference of the child if the child is of sufficient age and capacity to reason so as to make an intelligent decision: The children are not old enough to make a decision.
- The needs of the child: This is broad, but again, Paul has a strong argument that his children need to have the constant and continued presence of him in their lives.
- The stability of the home environment offered: Nothing indicates Mary’s new home would not be stable.
- The quality and continuity of the child’s education: Mary has offered proof of a good school system.
- The fitness of the parents: Both Mary and Paul would be fit parents. In fact, Paul could suggest that Mary relocate while he takes custody of the children.
- The geographical proximity of the parents’ homes: Another factor in Paul’s favor is how close they live now and how well the arrangement has worked. Is it in the children’s best interests to subject them to frequent and far travel?
- The extent and quality of the time spent with child prior to or subsequent to the separation: Paul spends at least two nights per week with the children ever week. They enjoy a great relationship. Again, Paul has a strong argument that disrupting this would not be in his kid’s best interests.
- The parents’ employment responsibilities: Both Mary and Paul have demanding jobs, but they could both negotiate with their employers and work out schedules to accommodate custody and parenting time.
- The age and number of children: There are two young children here who both need constant care and supervision. This would be difficult for trans-America travel.
As you can see, Paul as the non-custodial parent appears to have a stronger footing under the Best Interests analysis that will now be used. No longer can Mary simply show that the move is beneficial to her and not harmful to the kids. She must show that the move is in their best interests first and foremost.
Will Mary’s relocation be approved by the courts? Paul’s strong and continual relationship with their children would be heavily weighed by the judge when determining if Mary should be permitted to take them to California. If maintaining this relationship as is is viewed by the courts as in the children’s best interests, Mary’s motion may be denied.
Securing Your Future
The change offered by Bisbing is a significant one, but it does certainly fall in line with the widely-accepted premise that children thrive with the constant and loving involvement of both parents in their lives to the greatest extent possible. Determining how to make this happen is, indeed, in any child’s best interests.
Planning a move? Speak with a family law attorney to understand your rights and determine the best strategy for securing your future with your kids. To schedule an initial confidential consultation with one of highly skilled and compassionate attorneys, please contact us or call us today at (888) 888-0919.