Law School Case Brief
Bisbing v. Bisbing - 230 N.J. 309, 166 A.3d 1155 (2017)
The New Jersey Supreme Court departs from the two-part test that Baures prescribed for a relocation application brought by a parent of primary residence. The Court applies 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.
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 Jaime 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." Subsequently, the trial court entered a judgment of divorce, incorporating the terms of the Agreement. On January 8, 2015, Jaime informed Glenn that she intended to marry Jake Fackrell, a Utah resident with whom she had begun dating prior to the parties' divorce. Jaime asked Glenn to consent to the permanent relocation of the children to Utah. Glenn replied that Jaime was free to move to Utah, but that the children must remain in New Jersey with him.
Jaime filed a motion pursuant to N.J.S.A. § 9:2-2, seeking an order permitting her to permanently relocate the children to Utah. Glenn contended that Jaime 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, 770 A.2d 214 (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 Jaime’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. Jaime moved with the children to Utah and enrolled them in an elementary school.
A panel of the Appellate Division reversed and remanded for a plenary hearing, finding that there was a genuine issue of material fact as to whether Jaime 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 Glenn failed to prove Jaime’s bad faith, the trial court would then determine whether Jaime 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 Jaime failed to prove a substantial and unanticipated change.
Following the panel's decision, Jaime 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 Supreme Court of New Jersey granted Jaime’s petition for certification.
Should the Court apply the standard it established in Baures for determining the outcome of contested relocation determinations pursuant to N.J.S.A. 9:2-2?
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 and, in place of the Baures standard, courts should conduct a best interests analysis to determine cause under § 9:2-2 in all contested relocation disputes in which the parents share legal custody. As such, the Court remanded the case to the trial court for it to apply the best interests standard to the determination of cause under N.J.S.A. § 9:2-2, notwithstanding Jaime’s designation as the parent of primary residence, and the question whether Jaime anticipated a relocation when she negotiated for that designation did not determine the governing standard.
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