A Triumph for The Best Interests of The Child

The Overruling of Baures by the NJ Appellate Court

{7:12 minutes to read}  Relocation is among the most difficult family law issues for families and courts. Relocation is when the parent with sole or primary residential custody chooses to move out of state with the children. The change in parenting roles and developments in attachment theory, along with other areas of psychology are reflected in a recent court decision. The case of Bisbing v Bisbing went to the New Jersey Appellate Court about the issue of relocation.

In the case of Bisbing, the parties mediated their divorce, including agreeing to a parenting schedule for their twin daughters. While the parenting schedule reflected the mother having more overnights than the father, the father had significant weekly parenting time. He was integrally involved with the girls, coached their ski club, and had regular weekly parenting time.

The mediated Marital Settlement Agreement included language whereby the parents acknowledged that a move of either parent of a significant distance, in a manner that would dramatically affect the children’s access to both parents, would potentially impact the children negatively. The agreement stated that the parties recognized the importance of both parents being involved with the children in the manner proximity enables.

In this case, not long after the parties divorced, Ms. Bisbing notified Mr. Bisbing that she planned to remarry and move to Utah with the children. Had Mr. Bisbing consented, the matter would have ended there. Without the consent of the parent of alternate residence, the matter went to court.

The initial court granted Ms. Bisbing’s request to move with the children, presumably following the analysis under Baures v Lewis, and Mr. Bisbing appealed this ruling.

The Baures analysis follows:

Provided the custodial parent is relocating in good faith, for legitimate purposes – such as remarriage, availing herself of more family support, or a substantial employment opportunity – and not for the sole purpose of denying parenting time to the non-custodial parent, the court generally permits relocation. The reasoning is that the custodial parent should not be so restricted by her parenting obligations as to prohibit her enjoyment and enrichment of life. As the custodial parent achieves and accepts new opportunities, so too, the reasoning goes, are the lives of the children improved.

This rational made good sense in the days when one parent, typically the mother, would have close to 100% custody of the children, with the secondary parent being perfunctorily, often minimally involved. In such instances, it would be profoundly unjust to limit the primary parent’s mobility and ability to get on with her life merely to ensure the non-custodial parent a continuation of nominal parenting time. The Bauers analysis provided the moving parent a wide girth – provided the move would not cause inimical harm to the children, and the court would generally permit the relocation.

The Old Standard for Relocation

One of the issues in this case was whether the mother knew she wanted to move away with the girls and did not negotiate in good faith during the mediation. The Marital Settlement Agreement, the result of the mediation, included a provision about relocation stating neither parent would relocate more than 20 miles without the consent of the other parent. There was other language stating that the parents acknowledged that living within proximity of and having access to both parents is deemed to be important, and that relocating might detrimentally affect the children’s relationship with the other parent.

The New Standard: From Inimical Harm to Best Interest

In the case of Bisbing, Baures was overturned by the Appellate Court. This case reversed the looser standard of inimical harm to the child, in favor of the new standard: whether the move would be in the best interest of the child. This new analysis shifts the burden to the moving parent not only to show that the move is in good faith, but also to show that the move is in the children’s best interests. This showing needs to outweigh the presumption that the children are generally best served by having regular access to both parents. The new analysis also no longer rests on the presumption that what is good for the primary custodial parent is necessarily best for the children. In Baures, the analysis was the much lower standard such that if the move would do no harm to the child, it was permitted.

Important input from the therapeutic community says that children are served generally by having significant access and opportunity to build stable relationships with both parents, and that involvement of both parents in raising the children is optimal. This also reflects the changes in parenting that the last decades have seen, with more equal parenting time favored and 50/50 custody often being the norm. As the social, familial structures evolve, so inevitably does the law.

A final note: A couple years ago, a family judge fairly new on the bench, disclosed that relocation cases are the toughest and most gut-wrenching cases over which he presides. There is no outcome that leaves the parties untouched by some loss. On the one hand, this change may limit a divorced parent’s ability to get on with their life by remarrying, moving, or taking advantage of opportunities available to him or her. On the other hand, the non-moving parent and the children could be denied the fundamental opportunity to share these very important growing years, and may forfeit the opportunity to forge the sort of attachment that endures and provides a vital resource for a lifetime.

We will continue to see the law on this complex subject develop. Importantly, the needs and best interests of the child are perhaps being allotted the gravity they deserve.

Stay tuned.