Interstate Relocation with Children After Divorce

The Question of Relocation

Can you move out of New Jersey with your children after a divorce without the consent of your former spouse? Well, the answer has gotten more complicated since the NJ Supreme Court decided the matter of Bisbing v. Bisbing this summer.

Previous Standard

  • Before the Bisbing case, the NJ Superior Courts operated under the precedent established by Baures v Lewis in 2001.
  • In this case, the court sought to lessen the burden placed on the parent of primary residence: ie the parent with whom the children spend the majority of their overnight time, or that being equal between parents, the parent whose address is the children’s school address.
  • Based on the Baures decision, a parent of primary residence only needed to demonstrate a good faith reason for the interstate move and that the move was not harmful to the children’s interest. This decision was grounded in information available to the Court at the time.
  • It fell in line with other State Supreme Court decisions and aligned with the research of social scientists that argued that what was best for the parent of primary residency was ultimately best for the children.

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A Revised Approach

Times change and while Courts tend to stick with previous precedents and decisions when deciding cases in order to keep the law consistent, sometimes they change their minds. These decisions have significant implications for parents considering relocation with their children after divorce.

  • After hearing the Bisbing case, the court decided that the question of relocation needs to capture the spirit of New Jersey’s public policy to maintain contact between minor children and both parents after a divorce.
  • New Jersey statute 9:2 also dictates that the parent of primary residence must show cause to the court before relocating out of state with children without the consent of both parents.
  • The Bisbing case also urged the Court to reexamine the decisions of other State Supreme Courts and the most recent research of social scientists.
  • After considering that most other states have ruled in favor of a “best interest of the child” analysis of relocation requests, as well as the profound disagreement within the social science community with regard to what is best for children following a divorce, the Court decided that the best interest of the children, in conjunction with the interests of both parents in maintaining their relationships with the children must be considered in relocation requests.

With this decision, the Court hopes to alleviate unnecessary and costly lawsuits over who is listed as the parent of primary residence. The former Baures standard prioritized the parent of primary residence, while the new standard established by Bisbing seeks to see the parents as equals.

Take Away Point

The Baures standard no long serves as a guideline in child custody cases, instead courts will conduct a best interest analysis with regard to the children and both parents in the case of an interstate relocation request

If you have questions about relocation of children after divorce, please contact me at 973-366-5244 for a free consultation.

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