Child Relocation After Divorce: Creating a Level Playing Field for Parents

By: John P. Paone, Jr., Esq. and John P. Paone, III, Esq.

Following a divorce, one of the most hotly contested issues in family law is the request by one parent to relocate outside of the state with an unemancipated child. Until recently, the case law in New Jersey permitted the parent who maintained primary custody of the child to move out of the state with the child so long as that parent had a “good faith” reason for moving and there was proof that the move would not be harmful to the child. Essentially, the courts generally supported a custodial parent’s choice to move out of state with the child notwithstanding the devastating consequences for the other parent and the family and friends left behind. In a landmark case that came out of Monmouth County, the New Jersey Superior Court in Bisbing v. Bisbing recently decided that it will no longer give deference to the parent primarily residing with the child in relocation cases.

In Bisbing, the parties finalized their divorce by entering into a settlement which designated the mother as the parent of primary residence. Their agreement further included a provision which prohibited either party from relocating out of state with the child without the consent of the other parent. Shortly following the parties’ divorce, the mother advised that she intended to relocate with the child to Utah in order to marry a resident from that state. While the father did not object to the mother moving out of New Jersey, he would not agree for the child to leave as that would effectively deny him regular parenting time contact. The trial court, notwithstanding the parties’ agreement not to relocate, permitted the mother to relocate with the child to Utah. After the matter worked its way to the New Jersey Supreme Court, the high court reversed the trial court decision and formulated a new and universal relocation standard which focuses on the “best interests of the child.”

The best interests of the child standard abandons the prior legal thinking that essentially said “what is good for the custodial parent is good for the child.” Now the focus is no longer on the desires and good faith of the custodial parent. Rather, the best interest standard has the Court examining factors such as: (1) the parents’ ability to agree, cooperate, and communicate in matters relating to the child; (2) the parents’ willingness to accept custody and any history of unwillingness to allow parenting time; (3) the interaction and relationship of the child with their parents and siblings; (4) the needs of the child; (5) the stability of the home environment offered; (6) the geographical proximity of the parents’ homes; (7) the age and number of children; and (8) the extent and quality of time spent by the parents with the child prior to separation.

Clearly, this case now places both parties in a divorce on equal footing when it comes to the issue of child relocation. The inevitable consequence of the Bisbing decision is that fewer custodial parents will be able to leave the State of New Jersey with an unemancipated child. It remains to be seen, however, whether Bisbing will also reduce litigation in this highly contested area of the law.

Relocation cases which involve the interstate removal of a minor child are among the most emotionally difficult and contentious cases in the practice of family law. These cases frequently culminate in a child custody trial. Although there is now a bright line rule in New Jersey as to the standard which applies in such cases, the facts are oftentimes in conflict and courts frequently cannot make a determination as to the merits of any proposed relocation without holding a hearing in which the testimony of the parties and other evidence will be considered. If you are a parent who is involved in a relocation dispute, you should consult with experienced family law counsel regarding the Bisbing decision and your legal rights.

*John P. Paone, Jr., Esq. and John P. Paone, III, Esq. are divorce and family law attorneys with the Law Offices of Paone, Zaleski & Murphy, with offices in Red Bank and Woodbridge.