Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

If I Want To Move Out Of New Jersey With My Child, How Does A Court Make Its’ Decision?

Moving out of state is difficult, but it is that much harder for divorced parents with children. As a divorce and child custody attorney with over twenty years of experience, I know that New Jersey’s Family Part of the Superior Court can may apply two different standards in deciding removal proceedings. It is imperative to have a lawyer who understands the specific circumstances that trigger each standard of review. In Bisbing v. Bisbing, the New Jersey Appellate Division reviewed the authority a non-relocation agreement has on a future request by one parent to move to a faraway state. Father Glenn Bisbing appealed two orders of the Superior Court of New Jersey, Family Part of Sussex County that permitted his ex-wife, Jamie Bisbing to move out of the state with their eight-year old twin daughters, without first conducting a plenary hearing.

The New Jersey Appellate Division decided to reverse the Family Part’s decision and ordered a plenary hearing to determine if Jamie negotiated the marital settlement agreement in bad faith. If she did in fact negotiate the custody arrangement in bad faith, the appellate panel held that a best interest of the child analysis had to be conducted. If there was no bad faith present, then the Family Part had to determine if Jaime established the existence of a substantial and unanticipated change in circumstances that warranted a circumvention of the agreed to non-relocation section of the marital settlement agreement, and a necessary Baures analysis. If the marital settlement agreement was negotiated in good faith but Jaime failed to prove her burden of a substantial and unanticipated change in circumstances, then a best interest of the child analysis would still apply. Jaime would only be afforded the benefit of a Baures analysis, if: (1) Glenn failed to demonstrate that his ex-wife negotiated the marital settlement agreement in bad faith; and (2) Jamie satisfied her burden of proving a substantial and unanticipated change in circumstances that warranted a deviation from the relocation provision in the mutually agreed to marital settlement agreement.

Glenn and Jamie got married in 2005, and their twin daughters were born in November 2005. While both parents had high-paying jobs, Jamie earned a higher income than Glenn. Glenn went to Colorado and California to find a better job in 2013. The parents then separated in August. Soon after, in November, Jamie started a long-distance relationship with a citizen of Utah. The parents entered into a marital settlement agreement on March 8, 2014, and agreed on joint legal custody, and that Jamie would be designated as primary residential custodian, as long as she did not move out of the state.

Under Article 1.2 of the marital settlement agreement, Jaime further agreed that Glenn would have reasonable, broad and liberal time with the kids. The section on relocation, article 1.9, provided that each would inform the other of any plans to move, and that each parent would take reasonable efforts to live close to each other. Article 1.9 further provided that neither parent could move out of state with the child without written consent from the other parent. This section made special note to acknowledge that both parent’s understood the connection between the duration and frequency of contact with both parent’s, and the children’s quality of relationship with each parent. Moreover, the parents stated their understanding that a relocation that takes the children away from either parent would have a negative effect on the children. This marital settlement agreement was incorporated into a final judgment of divorce dated April 16, 2014.

Just one month after the divorce was finalized, Glenn received an email from Jamie which stated that she was going to leave her job, and become a full-time stay at home mother. Less than nine months after that, he received a call from her, in which she informed him that was going to marry the man she was dating from Utah, and move there as well. She wanted Glenn to give her permission to take their daughters with her. Glenn did not give her permission.

Jaime filed a motion to move to Utah with the children without the need for a plenary hearing, on March 16, 2015. The motion was granted, under the stipulation that both parents partake in mediation to establish a visitation schedule. The mediation was not successful, yet the Family Part court still established a parenting time schedule based mostly on Jaime’s suggestions. Eleven days later, Jamie and the kids “left for a vacation to Utah,” sand three days after that, they permanently relocated there.

While the New Jersey Appellate Division gives deference to a family court’s fact finding, because of the Family Parts special expertise and jurisdiction in family matters, the legal determinations of the Family Part, unlike fact finding, are subject to a plenary review. In Bisbing, the Family Part failed to hold a plenary hearing. Furthermore, it was not familiar with the litigants through motion practice. The appellate panel decided to reverse the Family Part’s decision and ordered a plenary hearing to determine if Jamie negotiated the marital settlement agreement in bad faith. If she did in fact negotiate the custody arrangement in bad faith, the appellate panel held that a best interest of the child analysis had to be conducted. If there was no bad faith present, then the Family Part had to determine if Jaime established the existence of a substantial and unanticipated change in circumstances that warranted a circumvention of the agreed to non-relocation section of the marital settlement agreement, and a necessary Baures analysis. If the marital settlement agreement was negotiated in good faith but Jaime failed to prove her burden of a substantial and unanticipated change in circumstances, then a best interest of the child analysis would still apply. Jaime would only be afforded the benefit of a Baures analysis, if: (1) Glenn failed to demonstrate that his ex-wife negotiated the marital settlement agreement in bad faith; and (2) Jamie satisfied her burden of proving a substantial and unanticipated change in circumstances that warranted a deviation from the relocation provision in the mutually agreed to marital settlement agreement.

According to New Jersey Statute 9:2-2, children from a divorced family cannot be removed from the jurisdiction of the Superior Court without consent form both parents, unless there is just cause for the court to order otherwise. One purpose of this law is to maintain the parent-child relationship between the non-custodial parent and the child. The New Jersey Appellate Division stated that when a non-custodial parent has a meaningful and healthy relationship with his or her children, in most circumstances a judicial authorization of removal will affect the child in an adverse way. The primary focus in picking the appropriate standard to apply in a removal motion is whether the physical custody arrangement among the parents is one where one parent is a primary caretaker, and the other is a secondary caretaker. If both of the parents share legal and physical custody the party requesting the modification of the joint custody relationship has the burden to demonstrate that it is in the best interest of the child that residential custody be given to the parent that wishes to move.

Conversely, when only one parent is the primary caretaker, the custodial parent’s request to move with the child is determined by the two-part Baures test. In the Baures test, the parent requesting judicial approval to move with the child has the burden to prove by a preponderance of the evidence, that there is a good faith reason to move; and the move will not be against the best interest of the child. In deciding whether or not to authorize a removal, the court has a duty to assess twelve factors relating to the moving party’s burden of showing good faith, and that the relocation is not against the child’s best interest. When the moving party succeeds in making this prima facie showing, the burden shifts to the opposing party to provide evidence showing that the is actually not in good faith or against the child’s best interest.

When a prima facie showing has been established that a genuine issue of material fact exists, a plenary hearing is necessary. In Bisbing, Glenn posed the question of whether his ex-wife acted in good faith when negotiating the custody section of their marital settlement agreement. Even though they mutually agreed to specific terms, less than nine months later she informed Glenn that she was moving to Utah and wanted to bring their daughters with her. Therefore, the New Jersey Appellate Division held that Glenn had the right to a plenary hearing determine whether Jaime manipulated the situation to get a favorable Baures analysis for the removal proceedings. The appellate panel stated that if Glenn succeeded in proving the existence of manipulation, fairness and equity would require the Family Part to apply a best interests of the child standard rather than the Baures standard.

If you or a loved one is looking to relocate from New Jersey with your child, your inquiry is invited.