Relocating out of New Jersey: Burden of Proof
Relocating out of New Jersey with your children: Prior to the decision in Bisbing v. Bisbing, the standard for relocation cases – where a parent wished to remove their child from New Jersey and relocate to a different state or a different country – was set by the Baures v. Lewis decision. In that decision, twelve factors were listed out for family court judges throughout New Jersey to consider when weighing whether or not to allow a parent to move out of state with their minor child. Baures, however, was only to apply to families where one parent had primary physical custody and both parents shared joint legal custody of the child or children. If both parents shared physical custody, a different standard would apply because a relocation, in those types of cases, would essentially become a change in custody.
In Baures, the overarching threshold that a parent with physical custody seeking permission to relocate was fairly low: The parent first must show that there is a real advantage to that parent in the move and that the move is not inimical, or harmful to the best interests of the children. Only after the custodial parent shows this, can the court consider the other factors listed in the decision such as: equal educational and leisure opportunities for the child, any special needs of the child, the sufficiency of the parenting time plan offered by the moving parent, the ability of the non-custodial parent to relocate, as well and the reason for the opposition to the relocation.
The court in Baures truly believed that if a parent was going to thrive and be successful in the new home state, then the child would naturally follow and be contented and fulfilled as well. The Baures court also thought that the future would bring further laws that highlighted the belief that a custodial parent should be able to relocate with relative ease if that move offered a true benefit to the parent and child.
After the New Jersey Supreme Court handed down the decision in Bisbing v. Bisbing, the standard has significantly changed. Now, instead of the courts in New Jersey applying the Baures factors, they must apply the “best interests standard,” a much higher threshold to meet, when deciding relocation cases.
The “best interests standard” is not new and it has, in fact been codified in a statute found at N.J.S.A. 9:2-2. The standard, and the factors that are weighed when determining if the standard has been met, has long been applied to other cases involving children: custody and parenting time. Now, that standard, because of Bisbing, will be applied to relocation cases, going forward. The factors, therefore, that must be analyzed when determining whether to permit a parent to relocate are:
- 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 visitation that is not based upon substantiated abuse;
- The interactions and relationship of the child with its parents and siblings;
- Any history of domestic violence;
- The safety of the child and the safety of either parent from physical abuse by the other parent;
- The preference of the child if the child is of sufficient age and capacity to reason so as to make 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 child prior to or subsequent to the separation;
- The parents’ employment responsibilities;
- The age and number of children.
Are you looking to relocate out of state? Or does your child’s other parent want to move away with your kids? Request an a initial consultation with a child custody lawyer to discuss your situation:
It remains important in any relocation case that the current status of custody is determined, because Bisbing is clear that the “best interests standard” and its accompanying factors be used for a family where parents share joint legal custody while one parent has primary physical custody.
The Bisbing Court determined that despite the beliefs of the Baures court in 2001, there is no clear answer whether or not a child will react positively or negatively to a relocation, regardless of the parent’s success or failures in the new state. All children are different and can respond in varied ways to a move and research on the topic has given us no solid consensus. “[T]he standard adopted in Baures did not represent a lasting trend in the law,” Justice Anne Paterson said.
The burdens of proof in relocation-related cases have been ever changing and with the arrival of the Bisbing decision, how the courts will analyze and apply the “best interests standard” in relocation matters remains to be seen. What continues to be true is that family court judges have a great amount of discretion in determining what actually is, or is not, in the best interests of a child.
