By: Richard Diamond, Esq.; and Jonathan Diamond, Esq.
Diamond & Diamond, P.A.
What if the primary custodial parent decides he/she wants to move out of New Jersey with the child, but the other parent objects? As a result, the primary custodial parent then files a “relocation application” with the Court, seeking the Court’s permission to move out of New Jersey with the child over the other parent’s objections.
This scenario happens every day in New Jersey, and typically, the other parent objects to the out-of-state move because that parent believes that the move will negatively impact the quality of his / her relationship with their child. So, how does the Court handle such a relocation application, and more importantly, who wins – the primary custodial parent seeking to relocate outside of New Jersey with the child, or the other parent who objects to the relocation?
Under the “old” legal standard (which was established in the case of Baures vs. Lewis, 167 N.J. 91 (2001)), the presumption was that if the primary custodial parent had a “good-faith reason” for the move (i.e., he/she is moving out of state for a better-paying job, moving to a different state with a lower cost of living or higher standard of living relative to New Jersey, etc.), the Court would grant the relocation application even if the move was going to negatively impact the relationship between the noncustodial parent and their child. Thus, the primary custodial parent would typically win in a relocation application under the “old” Baures standard as long as this parent could show that the out-of-state move was for a good reason and not inimical to the child’s best interests.
However, this standard for dealing with relocation applications changed in 2017 with the New Jersey Supreme Court decision of Bisbing vs. Bisbing, 230 N.J. 309 (2017), where our Supreme Court threw out the “old” Baures standard and created the “new” standard for dealing with relocation applications, making it significantly more difficult for a primary custodial parent to leave the state of New Jersey with the child/ children.
Under the “new” Bisbing standard, the focus shifted to whether the move is in the child’s best interest after weighing all of the factors set forth in N.J.S.A. 9:2-4. In order to determine whether the move is in the child’s best interests, N.J.S.A. 9:2-2 provides the following factors for the Court to consider:
- the parents’ ability to agree, communicate and cooperate in matters relating to the child;
- the parents’ willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse;
- the interaction and relationship of the child with his/her parents and siblings;
- the history of domestic violence, if any;
- the safety of the child and the safety of either parent from physical abuse by the other parent;
- the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision;
- the needs of the child;
- the stability of the home environment offered;
- the quality and continuity of the child’s education;
- the fitness of the parents;
- the geographical proximity of the parents’ homes;
- the extent and quality of the time spent with the child prior to or subsequent to the separation;
- the parents’ employment responsibilities;
- the age and number of the children; and
- all other relevant circumstances.
The takeaway from this change in the law governing relocation applications in New Jersey is that New Jersey Courts no longer follow the “old” Baures standard when it comes to permitting the primary custodial parent to relocate out of New Jersey with their child over the other parent’s objections.
Filing this type of application (or defending against this type of application) under the “new” Bisbing standard requires the assistance of a lawyer with specific family law knowledge, including all of the nuances therein. To help determine whether the required “cause” exists in your matter for a Court to permit or oppose the relocation of your child out of New Jersey, call (973-379-9292) or 609-248-9595 or email Diamond & Diamond (NJDivorcelawyer@aol.com) to schedule an initial consultation with one of our experienced Family Law Attorneys.