On April 23, 2001, the Supreme Court of New Jersey decided Baures v. Lewis, 167 N.J. 91 (2001). For more than 16 years, Baures guided post-divorce interstate relocation of children in a manner that generally favored the primary-custodial parent who sought relocation. On Aug. 8, 2017, the Supreme Court decided Bisbing v. Bisbing, __ N.J. __ (2017), which reversed Baures and set the new standard for interstate relocation disputes—a “best interests” analysis. Bisbing is a landmark decision thatserves as a departure from Baures.
In its 2001 decision, the Baures court recognized that courts had “struggled to accommodate the interests of parents and children in a removal situation ….” Baures, 167 N.J. at 91. Although Baures set forth a framework to resolve parents’ relocation disputes, the above quote also fittingly describes the intervening period between Baures and Bisbing. That is, while Baures provided a cogent framework to guide relocation disputes, the framework did not adequately accommodate the interests of children and both parents in a removal situation. Bisbing, however, accommodates the interests of children and both parents by placing the parents on equal footing. To that end, the court departed from Baures and held that all relocation disputes—regardless of custodial arrangement—must be determined under the “best interests” factors set forth in N.J.S.A. 9:2–4(c). Thus, following Bisbing, a primary custodial parent who seeks post-divorce relocation to another state must establish the “good cause” required by N.J.S.A. 9:2-2 through the best interests factors set forth in N.J.S.A. 9:2–4(c).
To better understand Bisbing‘s impact and its role in future cases, it is important to understand how the Supreme Court arrived at Baures and why it departed from it in Bisbing. In Baures, the court emphasized “the identity of the interests of the custodial parent and child” and opined that “social science research links a positive outcome for children of divorce with the welfare of the primary custodian and the stability and happiness within that newly formed post-divorce household.” Baures, 167 N.J. at 106 (citing Judith S. Wallerstein & Tony J. Tanke, To Move or Not to Move: Psychological and Legal Considerations in the Relocation of Children Following Divorce, 30 Fam. L. Q. 305, 311-12 (1996)). The Baures court also cited with approval to In re Marriage of Burgess, 913 P.2d 473 (Cal. 1996), a relocation case from the California Supreme Court that relied on Dr. Wallerstein’s “primary caretaker” theory she espoused as amica curiae. The Baures court concluded that social science failed to confirm “any connection between the duration and frequency of visits and the quality of the relationship of the child and the noncustodial parent.” Baures, 167 N.J. at 107 (citing Wallerstein at 312). In sum, any fair reading of Baures discloses that the court relied heavily on Wallerstein’s work—as did many courts throughout the country that faced relocation applications.
Wallerstein’s “primary caretaker” theory emphasized the stability and continuity of a family unit consisting of the primary custodial parent and his or her children. In turn, Wallerstein’s corollary argument—based on only ten studies, seven of which were her own—was that social science failed to establish the importance of protecting the stability and continuity of a child’s relationship with the non-primary custodial parent. Wallerstein reprised her “primary caretaker” theory in a second California Supreme Court case, In re Marriage of LaMusga, 88 P.3d 81 (Cal. 2004). Therein, Wallerstein reaffirmed her position that a child’s development and adjustment did not relate to frequent and continuing contact between child and non-custodial father. However, unlike Wallerstein’s position in In re Burgess, her argument met significant resistance from the social science community, including Dr. Richard A. Warshak (co-author of this article) and 27 social science researchers and practitioners, who, collectively, participated as amici curiae.
The Warshak amici drew attention to: (a) the limited scope of research cited by Wallerstein; (b) inconsistencies between Wallerstein’s interpretation of social science and the generally accepted consensus of her colleagues; and (c) contradictions between Wallerstein’s summary of the data from her own research and her past accounts of the same data. Drawing on 75 studies, including Wallerstein’s studies, the Warshak amici were united in their opinion that Wallerstein offered “a skewed and misleading account of social science evidence.” Contrary to Wallerstein’s assertion, the Warshak amici established that a move that is “good” for the primary custodial parent cannot be presumed to be “good” for the child.
In the years between Baures and Bisbing, social science detailed the risks to children’s adjustment of geographical relocations, see, e.g., William G. Austin, Relocation, Research, and Forensic Evaluation, Part I: Effects of Residential Mobility on Children of Divorce, 46 Fam. Ct. Rev. 137 (2008). However, very few studies investigated the impact of relocation after a divorce. One peer-reviewed study, published after Baures, found that children who lived more than one hour away from one parent suffered increased risk to long-term negative outcomes. See Sanford L. Braver, Ira M. Ellman, & William V. Fabricius, Relocation of Children After Divorce and Children’s Best Interests: New Evidence and Legal Considerations, 17 J. Fam. Psychol. 206-219 (2003). Notably, the “happy mother/happy child” equation failed to receive any support in the Braver, et al., study. Follow-up data analyses disclosed that negative outcomes associated with relocation equaled or exceeded negative outcomes linked with parent conflict and domestic violence. See William V. Fabricius & Sanford L. Braver, Relocation, Parent Conflict, and Domestic Violence: Independent Risk Factors for Children of Divorce, 3 J. Child Cust. 7-27 (2006).
Today, the broad consensus of social scientists remain in agreement that a child’s best interests is inexorably linked to the child’s stable and continued relationship with both parents. In fact, in 2014, with the endorsement of 110 prominent international authorities in social science research and practice, Warshak set out this consensus in a paper in an American Psychological Association journal. See Richard A. Warshak, Social Science and Parenting Plans for Young Children: A Consensus Report, 20 Psychol., Pub. Pol’y & L. 46 (2014). The report concluded that: “[w]e believe that the social science evidence on the development of healthy parent-child relationships, and the long-term benefits of healthy parent-child relationships, supports the view that shared parenting should be the norm for parenting plans for children of all ages.” And, “[t]o maximize children’s chances of having a good and secure relationship with each parent, we encourage both parents to maximize the time they spend with their children. Parents have no reason to worry if they share parenting time up to 50/50 when this is compatible with the logistics of each parent’s schedule.” Id. at 59. Also, in a study presented at the annual meeting of the Association of Family & Conciliation Courts in 2014, social scientists concluded that parental relocation poses a serious risk to children’s best interests. See Mathew M. Stevenson & William V. Fabricius, The Impact of Parental Relocation After Separation on Children’s Outcomes (presented on May 31, 2014; still in peer-review).
Through the new approach adopted in Bisbing—requiring courts to review relocation through the N.J.S.A. 9:2–4(c) factors—trial courts faced with a relocation application must conduct a full investigation into all family circumstances that bear on the potential benefits versus potential costs of moving the child a substantial distance from the other parent. As with any custody dispute, a child’s best interests may be buttressed with documents, fact witnesses, and expert proofs from psychologists and other mental health professionals that help elucidate the child’s best interests. However, because the primary risk to a child’s best interests in a relocation case is the harm to the child’s relationship with the non-moving parent and concomitant losses associated with a diminished relationship, it is essential for courts—and, in turn, the attorneys and litigants—to evaluate whether any perceived gains from the move will offset or compensate for the losses.
For example, a court might be swayed by evidence proffered about a child with special needs if those needs will be best accommodated by relocation—so long as any other emotional or physical issues of the child are not substantially exacerbated by the separation from the non-custodial parent. A reviewing court may also be moved by evidence that the non-relocating parent has little or no relationship with the child, thus, raising a fair inference that the objection to the move is done merely to frustrate the relocating parent without regard for the child’s best interests. As with any custody dispute, attorneys should present evidence of any historical information involving the parties that reflects an unwillingness of either party to facilitate the parent-child relationship. With those principles in mind, however, courts, attorneys and litigants, must remain cognizant that although residential mobility still remains a general risk factor, that risk factor standing alone does not justify a bias against a child’s relocation.
For more than two decades, many states’ courts relied on Wallerstein’s skewed presentation of social science in their quests to decide post-divorce relocation disputes between parents. To be sure, it is understandable that the Baures court relied on a prominent expert like Wallerstein. However, the totality of the then-existing research as well as more recent studies on children’s residential mobility and on the benefits of shared physical custody disclose that relocation adds to well-known risks attendant to a divorce. Bisbing, therefore, correctly supplants Baures‘ focus on the moving parent’s welfare with a focus on the best interests of the child. In the end analysis, and as argued by the Warshak amici, the social science research that informed the Baures decision does not represent the accepted, settled view among researchers and practitioners—a seismic shift that the New Jersey Supreme Court embraced in Bisbing.•