March 29, 2017
certification to the Superior Court, Appellate Division.
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).
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).
J., writing for the Court.
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
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.
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
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
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
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.
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)
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)
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)
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)
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)
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,
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.
JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, FERNANDEZ-VINA,
SOLOMON, and TIMPONE join in JUSTICE PATTERSON'S opinion.
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.
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.
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.
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.
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.
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.
and defendant were married on August 27, 2005. Their twin
daughters were born on November 17, 2006.
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.
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.
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."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.
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 ...