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On Aug. 8, the New Jersey Supreme Court in Bisbing v. Bisbing, __ N.J. __ (2017), Justice Anne Patterson delivered a landmark opinion for the court, addressing 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 a child, despite the other parent’s opposition to the child’s move.

In Bisbing, the parties divorced when their twin daughters were seven years old. The settlement agreement provided that the plaintiff mother would be parent of primary residence (PPR), with defendant as parent of alternate residence (PAR), and that neither party would permanently relocate out of state with the children without prior written consent of the other. Several months after the parties’ divorce, plaintiff advised that she intended to marry a Utah resident, seeking an order permitting her to move the children there.

The trial court applied the Baures v. Lewis, 167 N.J. 91, 118–20 (2001), standard, whereby a parent with primary custody seeking to relocate children out-of-state over objection 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 this standard met and authorized the children’s relocation, conditioned on defendant having scheduled visitation and regular communication with his daughters. Defendant appealed.

Judge Ellen L. Koblitz wrote for the appellate panel, reversing the trial court’s judgment and holding if defendant were to make a showing on remand that plaintiff had negotiated the parties’ custody agreement in bad faith, the “inimical to the child’s interest” standard of Baures should not be applied, but rather a determination of whether relocation would be in the best interests of the child. This is really nothing strikingly novel. See Shea v. Shea, 384 N.J. Super. 266, 270 (Ch. Div. 2005).

The court took the matter one evolutionary step further by applying the same standard to all interstate relocation disputes where parents share custody — i.e., cases where one parent is designated PPR and the other is PAR, and cases where residential 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.

Interestingly, in her foreword to the 2015 Edition of New Jersey Family Law, Relationships Involving Children, Fall & Romanowski (Gann) (later editions Child Custody, Protection & Support), Justice Virginia A. Long prefigured the standard change of Bisbing with the following comment:

Another example of a changing landscape is removal. Traditionally the parent seeking removal had to show “a real advantage.” Cooper v. Cooper, 99 N.J. 42, 56 (1984). The decision in Holder v. Polanski, 111 N.J. 344, 352 (1988) diluted that standard to “any sincere good faith reason.” Later, in Baures v. Lewis, 167 N.J. 91, 109 (2001), the Court further relaxed the burden on the parent seeking removal in recognition of the caretaker’s liberty interest in seeking happiness and fulfillment. Baures was undergirded by the social science literature of the day, which uniformly tethered the child’s happiness to the happiness of the parent with whom he or she lives. See, e.g. Judith Wallerstein and Tony J. Tanke, “To Move or Not to Move: Psychological and Legal Considerations in the Relocation of Children Following the Divorce.” 30 Family. L.Q. 305 (1996). Since that time, there has been some movement in the social science literature away from the notion that what is good for the custodial parent is good for the child and Wallerstein’s work has come under criticism by experts in some foreign court proceedings. The standard thus may be ripe for reconsideration.

In that volume, the Honorable Robert A. Fall (JAD on recall) and Curtis J. Romanowski wrote:

Initially, the lighter burden applied to removal requests by an exclusive or primary caretaker was established in an attempt to recognize the caretaker’s liberty interests to seek happiness and fulfillment. See Baures v. Lewis, 167 N.J. at 115. See also Voit v. Voit, 317 N.J. Super. 103, 115-116 (Ch. Div. 1998) (noting the tension between “the moving parent’s freedom of mobility, the competing interests of the objecting parent, and the best interests of the child”). The standard relies on the general belief that “what is good for the [primary caretaker] is good for the child.” See Baures v. Lewis, 167 N.J. at 106. Unfortunately, application of the more accommodating standard does not necessarily result in an arrangement that furthers the child’s best interests. Indeed, at least one of the studies relied upon in Baures for the premise that a child’s wellbeing is directly related to the wellbeing of the residential parent has been criticized as having limited support. See Braver, Ellman, & Fabricius, Relocation of Children After Divorce and Children’s Best Interests: New Evidence and Legal Considerations, Journal of Fam. Psych., Vol. 17, No. 2 (2003), at 206-219 (Braver study). In the Braver study, which was completed after Baures was decided, it was determined that “there is no empirical basis by which to justify a legal presumption that a move by a custodial parent to a destination she plausibly believes will improve her life will necessarily confer benefits on the children she takes with her.” Id. at 215.

In addition, the divergent standards for removal have left the door open for the abuse and manipulation of proceedings to establish or modify the custody arrangement. See, e.g., Shea v. Shea, 384 N.J. Super. 266, 273-274 (Ch. Div. 2005). Clearly then, this is an area of the law that will continue to evolve as more is understood about the connection between a parent’s wellbeing and that of a child, as well as the effect of a relocation on the child and the child’s relationship with either parent.

Fall & Romanowski, New Jersey Family Law, Relationships Involving Children (Gann) [written in 2014].

Importantly, Bisbing never intended to toss the Baures factors out — a much more removal-specific list than our custody statute — with the proverbial bathwater. N.J.S.A. 9:2-4 contains 14 nonexclusive factors, leaving the door open to consideration of the Baures factors and others. Bisbing, after all, only changed the standard from the constellation of interests theory in Baures-Morgan to “best interests.” As Justice Stewart G. Pollock wrote in Holder v. Polanski, 111 N.J. 344, 353-354 (1988), “[i]n resolving the tension between a custodial parent’s right to move and a noncustodial parent’s visitation rights, the beacon remains the best interests of the children.”

The following is a non-exclusive checklist of removal factors, combining relevant N.J.S.A. 9:2-4 and Baures factors (including some comments), designed to guide insightful post-Bisbing analysis:

(1) The parents’ ability to agree, communicate and cooperate in matters relating to the child, (including but certainly not limited to the past history of dealings between the parties insofar as it bears on the reasons advanced by both parties for supporting and opposing the move).

(2) The parents’ willingness to accept custody and any history of unwillingness to allow visitation not based on substantiated abuse.

(3) The interaction and relationship of the child with its parents and siblings (under existing circumstances).

(4) Whether a visitation and communication schedule can be developed that will allow the non-custodial parent (and perhaps divided siblings) to maintain a full and continuous relationship with the child.

(5) The likelihood that the custodial parent will continue to foster the child’s relationship with the non-custodial parent if the move is allowed;

(6) The effect of the move on extended family relationships here and in the new location.

(7) The history of domestic violence, if any (including but not limited to when the last alleged episode of domestic violence occurred, whether it has abated, if a complaint was ever filed, if a TRO or FRO was ever entered, and whether and when it was vacated, if applicable).

(8) The safety of the child and the safety of either parent from physical abuse by the other parent (including the basis for any allegation and whether safety issues continue, or when they ceased).

(9) The preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision. See Kavrakis v. Kavrakis, 196 N.J. Super. 385 (Ch. Div. 1984) (where the court found it to be clear that the legislature intended the applicable age in the expression, “of suitable age,” to be 14 years, as a chronological, prima facie starting point).

(10) The needs of the child (including but not limited to any special needs or talents of the child that require accommodation and whether such accommodation or its equivalent is available in the new location).

(11) The stability of the home environment offered in each parent’s setting (under the existing circumstances and prospectively).

(12) The quality and continuity of the child’s education (under the existing circumstances and prospectively, including but not limited to whether the child will receive educational, health and leisure opportunities at least equal to what is currently available).

(13) Whether the child is entering his or her senior year in high school, and whether the child has given his or her consent to the move prior to graduation.

(14) The fitness of the parents.

(15) The geographical proximity of the parents’ homes (as currently exist and prospectively).

(16) The reasons given for the move.

(17) The reasons given for the opposition.

(18) The extent and quality of the time spent with the child prior to or subsequent to the (initial) separation (and currently).

(19) The parents’ employment responsibilities (under existing circumstances and following the proposed move.

(20) Whether the non-custodial parent has the ability to relocate.

(21) The age and number of the children.


Romanowski is co-author of New Jersey Family Law – Child Custody, Protection & Support (Gann 2017). He is the principal and founder of Romanowski Law Offices – Metuchen, Tinton Falls, Toms River.