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Bisbing v. Bisbing

Supreme Court of New Jersey

August 8, 2017

JAIME TAORMINA BISBING, Plaintiff-Appellant,
v.
GLENN R. BISBING, III, Defendant-Respondent.

          Argued March 29, 2017

         On certification to the Superior Court, Appellate Division.

          Paul H. Townsend argued the cause for appellant (Townsend, Tomaio & Newmark, attorneys; Paul H. Townsend, of counsel and on the brief; Valerie R. Wane, on the brief).

          Matheu D. Nunn argued the cause for respondent (Einhorn, Harris, Ascher, Barbarito & Frost, attorneys).

          Timothy F. McGoughran argued the cause for amicus curiae New Jersey State Bar Association (Thomas H. Prol, President, of counsel; Timothy F. McGoughran, Brian G. Paul, Derek M. Freed, and Albertina Webb, on the brief).

         PATTERSON, J., writing for the Court.

         In this appeal, the Court addresses the showing necessary to establish "cause" under N.J.S.A. 9:2-2 for the entry of an order authorizing a parent to permanently relocate out of state with his or her child, despite the other parent's opposition to the child's interstate move.

         Following their separation, plaintiff Jaime Taormina Bisbing and defendant Glenn R. Bisbing, III, agreed on the terms of a Marital Settlement Agreement (Agreement), which they executed on March 8, 2014. With respect to their twin daughters, the Agreement provided that plaintiff would have primary residential custody. It also included a relocation provision, stating, in part, that "[n]either party shall permanently relocate with the Children from the State of New Jersey without the prior written consent of the other." On April 16, 2014, the trial court entered a judgment of divorce, incorporating the terms of the Agreement. On January 8, 2015, plaintiff informed defendant that she intended to marry Jake Fackrell, a Utah resident whom she had begun dating prior to the parties' divorce. Plaintiff asked defendant to consent to the permanent relocation of the children to Utah. Defendant replied that plaintiff was free to move to Utah, but that the children must remain in New Jersey with him.

         Plaintiff filed a motion pursuant to N.J.S.A. 9:2-2, seeking an order permitting her to permanently relocate the children to Utah. Defendant contended that plaintiff had negotiated the Agreement in bad faith, securing his consent to her designation as parent of primary residence without informing him that she contemplated relocating. Without holding a plenary hearing, the trial court applied the standard established in Baures v. Lewis. 167 N.J. 91, 118-20 (2001): A parent with primary custody seeking to relocate children out of state over the objection of the other parent must demonstrate only that there is a good-faith reason for an interstate move and that it "will not be inimical to the child's interests." The court granted plaintiff's application for relocation, explaining that she presented a good-faith reason and that the move would not be inimical to the children's interests. Plaintiff moved with the children to Utah and enrolled them in an elementary school.

         The Appellate Division reversed and remanded for a plenary hearing. 445 N.J.Super. 207 (App. Div. 2016). The panel found that there was a genuine issue of material fact as to whether plaintiff negotiated the custody provisions of the Agreement in good faith. It ruled that if the trial court concluded that she had acted in bad faith, it should resolve the relocation motion using the best interests standard instead of the more lenient "not. . . inimical to the child's interests" standard of Baures. The panel held that if defendant failed to prove plaintiff's bad faith, the trial court would then determine whether plaintiff proved a substantial and unanticipated change in circumstances that would permit her to avoid the Agreement's relocation provision. The panel directed the trial court to apply the best interests of the child standard if plaintiff failed to prove a substantial and unanticipated change.

         Following the panel's decision, plaintiff returned with her children to New Jersey. The trial court denied her motion for a stay and ordered the parties to abide by the residency provisions in the Agreement. The Court granted plaintiff's petition for certification. 227 KI 262 (2016).

         HELD: The Court recognizes a "special justification" to abandon the standard it established in Baures v. Lewis. 167 N.J. 91 (2001) for determining the outcome of contested relocation determinations pursuant to N.J.S.A. 9:2-2. In place of the Baures standard, courts should conduct a best interests analysis to determine "cause" under N.J.S.A. 9:2-2 in all contested relocation disputes in which the parents share legal custody.

         1. New Jersey's custody statute was enacted to further the public policy "to assure minor children of frequent and continuing contact with both parents after" separation or divorce. N.J.S.A. 9:2-4. The Legislature provided that "[i]n any proceeding involving the custody of a minor child, the rights of both parents shall be equal, " ibid., and prescribed a non-exclusive list of factors to guide a court charged to determine the custody arrangement that most effectively serves the child's best interests. A custody arrangement adopted by the trial court is subject to modification based on a showing of changed circumstances, with the court determining custody in accordance with the best interests standard of N.J.S.A. 9:2-4. (pp. 15-18)

         2. N.J.S.A. 9:2-2 requires a showing of "cause" before a court will authorize the permanent removal of a child to another state without the consent of both parties. In Baures, the Court held that in the shared-custody setting, the trial court should treat the relocation application as "governed initially by a changed circumstances inquiry and ultimately by a simple best interests analysis." Id. at 116. But if the parent seeking removal is the custodial parent, that parent would establish "cause" under N.J.S.A. 9:2-2 if he or she proved good faith and that the move would not be inimical to the child's interest. The Court identified two developments in support of its alteration of the governing standard for N.J.S.A. 9:2-2 relocation applications: (1) social science research indicated that when a relocation benefits a "custodial parent, " it will similarly benefit the child; and (2) the growing trend in the law easing restrictions on the custodial parent's right to relocate with the children. Because the parties' custodial arrangement is potentially dispositive when a court determines whether to authorize relocation under Baures, a collateral dispute regarding the parties' good faith in their custody negotiations may arise. In such cases, the Appellate Division has held that the best interests standard would apply rather than the Baures standard, (pp. 18-25)

         3. In considering whether to retain the Baures standard as the benchmark for contested relocation determinations, the Court recognizes that it has always required a departure from precedent to be supported by some special justification. Such justification might be found when experience teaches that a rule of law has not achieved its intended result, (pp. 25-26)

         4. In deciding Baures, the Court did not intend to either diverge from the best interests standard at the core of the custody statute or circumvent the legislative policy giving parents equal rights in custody proceedings. Instead, the Court created the two-pronged "good faith" and "not. . . inimical to the child" test based on social science research and trends in the law. Since the Baures decision, however, the vigorous scholarly debate among social scientists who have studied the impact of relocation on children following divorce reveals that relocation may affect children in many different ways. Moreover, the progression in the law toward recognition of a custodial parent's presumptive right to relocate with children, anticipated by this Court in Baures. has not materialized. Today, the majority of states impose a best interests test when considering a relocation application filed by a custodial parent; some have recently abandoned the presumption in favor of that parent. The standard adopted in Baures did not represent a lasting trend in the law. Moreover, by tethering the relocation standard to one party's status as the custodial parent, the Baures standard may generate unnecessary disputes regarding that designation. Accordingly, the Court recognizes a "special justification" in this case to abandon that standard, (pp. 26-35)

         5. In place of the Baures standard, courts should conduct a best interests analysis to determine "cause" under N.J.S.A. 9:2-2 in all contested relocation disputes in which the parents share legal custody-whether the custody arrangement designates a parent of primary residence and a parent of alternate residence, or provides for equally shared custody. A number of the statutory best interests factors will be directly relevant in typical relocation decisions, and additional factors not set forth in the statute may also be considered in a given case. Contrary to plaintiff's contention, the relocation constraints imposed by N.J.S.A. 9:2-2 do not infringe on the relocating parent's constitutional right to interstate travel, (pp. 35-39)

         6. The Court remands to the trial court for a plenary hearing to determine whether the custody arrangement set forth in the parties' Agreement should be modified to permit the relocation of their daughters to Utah. It does not agree with defendant's assertion that by consenting to the interstate relocation provision of the Agreement, plaintiff waived her right to a judicial determination of her relocation application under N.J.S.A. 9:2-2. However, plaintiff must demonstrate changed circumstances to justify modification of the Agreement, and, because the relocation is permanent, she must demonstrate that there is "cause" for an order authorizing it. In that inquiry, "cause" should be determined by a best interests analysis in which the court will consider all relevant factors set forth in N.J.S.A. 9:2-4(c), supplemented by other factors as appropriate. Because the best interests standard applies to the determination of "cause" notwithstanding plaintiffs designation as the parent of primary residence, the court need not decide whether plaintiff negotiated the parties' Agreement in bad faith, (pp. 39-41)

         The judgment of the Appellate Division is MODIFIED and AFFIRMED, and the matter is REMANDED to the trial court for proceedings in accordance with this opinion.

          CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE PATTERSON'S opinion.

          OPINION

          PATTERSON, JUSTICE

         This appeal arises from a trial court's post-judgment determination authorizing a mother to permanently relocate with her children out of state, notwithstanding their father's objection to the children's move. It requires that we address the showing necessary to establish "cause" under N.J.S.A. 9:2-2 for the entry of an order authorizing a parent to relocate out of state with his or her child, despite the other parent's opposition to the child's interstate move.

         Plaintiff Jaime Taormina Bisbing and defendant Glenn R. Bisbing, III, divorced when their twin daughters were seven years old. Their judgment of divorce incorporated their settlement agreement that plaintiff would be the parent of primary residence and defendant would be the parent of alternate residence. It provided that neither party would permanently relocate out of state with the children without the prior written consent of the other. Several months after the parties' divorce, plaintiff advised defendant that she intended to marry the man whom she had been dating, a resident of Utah, and sought an order permitting her to move the children to that state.

         The trial court applied the standard set forth in this Court's decision in Baures v. Lewis, 167 N.J. 91, 118-20 (2001). Under Baures, a parent with primary custody seeking to relocate children out of state over the objection of the other parent must demonstrate only that there is a good-faith reason for an interstate move and that the relocation "will not be inimical to the child's interests." Ibid. The trial court found that plaintiff sought to relocate for a good-faith reason and that the relocation would not be inimical to the interests of the parties' daughters. The trial court authorized the children's relocation to Utah, conditioned on an agreement allowing defendant scheduled visitation and regular communication with his daughters following the move.

         Defendant appealed, and an Appellate Division panel reversed the trial court's judgment. The panel held that if defendant were to make a showing on remand that plaintiff had negotiated the parties' custody agreement in bad faith, the trial court should not apply the "inimical to the child's interest" standard of Baures but should instead determine whether relocation would be in the best interests of the child. The panel thus imposed on a plaintiff who has negotiated a custody arrangement in bad faith a higher burden of proof on the question of "cause" under N.J.S.A. 9:2-2 than the burden imposed under Baures. We granted plaintiff's petition for certification.

         We affirm and modify the Appellate Division's judgment. We depart from the two-part test that Baures prescribed for a relocation application brought by a parent of primary residence. We apply the same standard to all interstate relocation disputes under N.J.S.A. 9:2-2 in which the parents share legal custody --cases in which one parent is designated as the parent of primary residence and the other is designated as the parent of alternate residence and cases in which custody is equally shared. In all such disputes, the trial court should decide whether there is "cause" under N.J.S.A. 9:2-2 to authorize a child's relocation out of state by weighing the factors set forth in N.J.S.A. 9:2-4, and other relevant considerations, and determining whether the relocation is in the child's best interests.

         Accordingly, we modify and affirm the Appellate Division's judgment and remand to the trial court for a plenary hearing to determine whether the proposed relocation of the parties' daughters to Utah is in the children's best interests.

         I.

         Plaintiff and defendant were married on August 27, 2005. Their twin daughters were born on November 17, 2006.

         The family lived in Stanhope, near the parties' respective families in Pennsylvania. The children's grandmothers assisted with child care while plaintiff and defendant worked. Both parties were employed outside of the home during the marriage. Plaintiff commuted to New York City for her job, and defendant worked in New Jersey.

         In 2013, after eight years of marriage, plaintiff and defendant separated. Without legal counsel, but with the assistance of a mediator, they agreed on the terms of the Marital Settlement Agreement (Agreement). They executed that Agreement on March 8, 2014.

         The parties' Agreement provided that they would share "joint legal custody, with primary residential custody being with the mother, of the un-emancipated [c]hildren born of the marriage, " and that plaintiff "shall be the custodial parent."[1]It stated that the children would stay with defendant every other weekend and one weeknight every other week. The parties agreed on a parenting schedule for holidays, acknowledged that they both were entitled to attend all of their children's events, and granted one another a right of first refusal if one parent were unable to care for the children during parenting time reserved for that parent.

         The Agreement included a provision addressing any future disputes regarding the relocation of the children:

Relocation. The parties agree that each shall inform the other with respect to any change of residence concerning himself or herself or the said minor Children for the period of time wherein any provision contained in this Agreement remains unfulfilled. The parties represent that they both will make every effort to remain in close proximity, within a fifteen (15) minute drive from the other. Neither party shall permanently relocate with the Children from the State of New Jersey without the prior written consent of the other. Neither parent shall relocate intrastate further than 20 miles from the other party. In the event either party relocates more than 20 miles from the other party, the parties agree to return to mediation to review the custody arrangement. In the event a job would necessitate a move, the parties agree to discuss this together and neither will make a unilateral decision. Neither party shall travel with the minor Children out of the United States without the prior written consent of the other party.
The parties hereby acknowledge that the Children's quality of life and style of life are provided equally by Husband and Wife.
The parties hereby acknowledge a direct causal connection between the frequency and duration of the Children's contact with both parties and the quality of the relationship of the Children and each party.
The parties hereby acknowledge that any proposed move that relocates the Children further away from either party may have a detrimental impact upon the frequency and duration of the contact between ...

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