Baures Gets Relocated: Removal Gets An Update

By: Melissa E. Cohen, Esq.

Weinberg & Cooper, LLC

It is always a difficult scenario. Parents get divorced and a custody schedule is entered, for a parent to later be transferred to a different location. Or, a separation occurs, and one parent wants to move to where they have more family support. Post-divorce, people move on to new jobs, new romantic relationships, and new lives.

What happens to the children when a relocation to a new state must occur in order for a parent to move on with their lives? What happens to the children, and to the non-relocating parent?

The law in New Jersey is well-settled: a custodial parent cannot relocate outside of the State of New Jersey with the children without consent of the non-custodial parent, or permission of the Court. If the non-custodial parent will not consent, the next step is that the parent desiring to relocate must make an application to the Court. How does the Court decide?

Such relocation cases are amongst the most difficult cases for a Court. With any outcome, one parent is going to be extremely disappointed – the parent who cannot relocate may miss out on a fruitful work opportunity or new marriage, or the parent whose children are permitted to move away will forever have their relationship with their children altered.

Since 2001, the applicable standard for the Court to when a parent sought to relocate was set forth in Baures v. Lewis, (http://caselaw.findlaw.com/nj-supreme-court/1245062.html) which stated that one must show that the proposed move was made in good faith, and that it was not inimical to the children's best interests.

In 2002, it was clarified in O'Connor v. O'Connor, (http://law.justia.com/cases/new-jersey/appellate-division-published/2002/a1155-01-opn.html) that the Baures standard applied in cases where there was one party that acted as a clear parent of primary residence. O'Connor stood for the proposition that when there is a shared parenting time relationship, the Baures test would not apply, and the Court would determine a relocation based upon what is in the best interests of the children.

While these competing standards were at play, the type of parenting time arrangement between the parents was the first, and most important, consideration. It was commonly understood that under the Baures test, relocation would be easier than under a best interests standard where the parties exercised a shared parenting schedule. That would make sense, considering it would be harder for the Court to consider a move to be in the best interests of a child if the child was having significant time with both parents, and the relocation would impact the parenting time schedule.

In Bisbig v. Bisbig, (http://caselaw.findlaw.com/nj-supreme-court/1870072.html) decided in August 2017, the Supreme Court of the State of New Jersey changed the standard for relocation of a child outside of the State of New Jersey. Going forward, regardless of the parenting time schedule that is in existence at the time the relocation matter is filed, the Court will consider whether the move is in the best interests of the child.

In Bisbig, the parties had been divorced in 2014. Less than a year later, the mother informed the father she would be relocating with the children to Utah, where her significant other resided. She intended to re-marry. The father objected to the relocation of the two children. The mother filed an application with the Court for permission to relocate. The trial Court applied the then-existing Baures standard, and allowed her to relocate, stating that her reasons were in good faith and the move would not be inimical to the children's best interests. The Appellate Division reversed, opining that because the parties had just entered into their divorce settlement agreement, the mother may have negotiated the initial parenting agreement in bad faith to gain residential custody, knowing she already sought to relocate. Under the then existing standard, if a party had negotiated a custody agreement in bad faith, they would have to show "cause" for the move rather than just meet the Baures standard.

The implication of the Appellate Division decision was that the mother had to move back from Utah with the children.

The Supreme Court of New Jersey decided to hear this case, which means that it considered this issue important, and to be ripe for consideration.

The Supreme Court of New Jersey upheld the Appellate Division. More significantly, the Supreme Court departed from the Baures standard. Going forward, all relocation cases, regardless of the parenting time schedule in existence at the time of filing, will be considered under the best interests standard, so long as the parties have joint legal custody.

Why would the Supreme Court break from such a long-standing and well settled legal principle? There were several reasons. First, some of the principles behind Baures – that the happiness of the child will follow the happiness of the moving parent, and that there was a growing trend amongst the states in easing relocations – never come to pass. Moreover, with the competing standards, there was a lot of emphasis on the initial custody agreement, leaving open a dispute as to whether the parents acted in good faith in the initial custody agreement. Also, the best interests standard appears to comport with the trend in many states.

It will remain to be seen how the standard is applied. However, it may be that the Court has made it harder in some cases to relocate outside of this State. The Court will continue to consider the issue on a case by case basis, depending on the facts of each particular state. Surely, the distance between New Jersey and the new location, and the impact on the existing parenting time schedule, will remain important factors for the Court to consider.

If you have a potential relocation matter, the attorneys at Weinberg & Cooper, LLC, are here to help.