New Jersey – The New Relocation Standard

Can a custodial parent in New Jersey move to another state and still retain custody if permission is not obtained from the other parent? A recent New Jersey State Supreme Court decision has made this more difficult by raising the burden of proof that needs to be established.

Previously, a two-part criteria was applied that had been established in 2001 by Baures v. Lewis. Under Baures, a primary custodian would be permitted to relocate out-of-state with a child without the consent of the other parent if they could prove that: (1) a good faith reason exists for the move and (2) the child’s relocation will not be contrary to the child’s best interests. This standard was created under the belief that a relocation that would benefit the custodial parent would also benefit the child.

This two-part criteria was tested recently in Bisbing v. Bisbing, when a mother, who was designated as the primary custodian of her twin daughters, stated her intention to move to Utah to marry her boyfriend, despite signing a marital settlement agreement in which both parents agreed to remain in New Jersey unless they obtained written permission of the other parent. The father filed a motion in the courts to prevent the mother from moving with the minor children.

The New Jersey State Supreme Court overturned the 2001 precedent finding that the progression in the law toward recognition of a parent of primary residence’s presumptive right to relocate with the children had not materialized. The court noted that the Baures standard was not compelled by contemporary social science or grounded in legal authority, as the Court anticipated that it would be when it decided that case.

The Court explained that the new standard will require the courts to conduct a best interests analysis in all contested relocation disputes in which the parents share legal custody. Further, the court stated that the New Jersey Legislature unequivocally declared that the rights of parents are to be equally respected in custody determinations and that custody arrangements must serve the best interests of the child.

As a result this recent ruling, the primary custodial parent must prove it is in the child’s best interest to relocate out-of-state instead of proving that it is in the best interest of the parent. This has raised the burden of proof, making it more difficult for a parent to relocate with a child without the consent of the other parent.

Pennsylvania

Relocation in Pennsylvania is defined as “a change in residence of the child which significantly impairs the ability of a non-relocating party to exercise custodial rights.” 23 Pa.C.S. §1915.17. The parent seeking relocation must provide notice to the other custodial parent, or any other individual who has custody rights. In the event a custodial parent objects to the relocation, the court decides whether to permit the relocation under the “best interest” analysis. In Pennsylvania, the “best interest” analysis considers multiple factors, including the ability to maintain a relationship between the non-relocating parent and the child as well as any new opportunities the child will have as a result of the move.