Things are looking up for you. Your divorce is final, your children are adjusting to the custody arrangement you have with your ex, and work is going well. In fact, you just got a promotion with a generous raise. The possible drawback is that it requires you to relocate from New Jersey to Massachusetts.
The company is going to pay to relocate you, but you have concerns that your ex will have a problem with you moving out of state with your three kids, even though you have primary residential custody. While your custody agreement has relocation provisions, where does this leave you from a legal standpoint? While this issue was previously addressed in a prior blog, there have been recent, significant changes to the case law governing custody and relocation.
While the Court requires all divorce decrees involving minor children to address custody, most never speak to the specific issue of relocation. It is undisputed that relocation can be stressful for everyone involved, and custody issues often ramp up that stress. It creates the hurdles of travel for visitation, infrequency of visits and the added expense.
New Case May Impact Your Relocation Efforts
Since custody arrangements often determine whether or not a parent can relocate with children, there have been times when the law has been manipulated by one or more parties in support of their position. The most recent case, Bisbing v. Bisbing, raised questions as to whether the custody agreement in place unfairly favored the ability of one parent to relocate the children, potentially without the other party’s consent or knowledge. This Supreme Court decision substantially changes the way prior relocation cases were considered by the court.
The parties involved are Jaime Taormina Bisbing and Glenn R, Bisbing, III. In 2014, a consent order was incorporated into their divorce decree in which the couple agreed to joint custody, with their children’s primary residence being with their mother. It also included a provision that “(n)either party shall permanently relocate with the Children from the State of New Jersey without the prior written consent of the other.”
Mr. Bisbing argued that the relocation provision was made in bad faith. He explained how involved he was in his children’s lives, education and extracurricular activities, and how his visitation was frequently extended. Additionally, the father also shared how that all changed once Mrs. Bisbing remarried and sought to relocate; the agreement was kept to the letter and nothing more. Above all, Mr. Bisbing’s concern was the adverse effect of not seeing him daily would have on his daughters.
On the other hand, Mrs. Bisbing claimed that the move would not pose a problem to the children and was being done in good faith. In support of her position, she advised the Court that she would not be working and would be better able to address the children’s needs as a stay-at-home mother. The Court permitted the move, providing for regular contact and reasonable visitation. Be that is it may, Mr. Bisbing appealed.
The Court sought to determine whether there was a “substantial and unanticipated change in circumstances” resulting in the move. If not, then the court would seek to enforce what was in the best interests of the children. An Order was entered requiring the children be returned to NJ pending a hearing. Mrs. Bisbing and the girls moved to her parents’ house in Pennsylvania, near the NJ border, to comply with this requirement. Mr. Bisbing pointed out that public policy favors custody agreements which support the interaction of both parents in their children’s lives. All things considered, the father was worried that electronic communications and occasional visits would negatively affect their relationship.
The Standard of the Child’s Best Interests
The dilemma becomes whether relocation is the best thing for the children under the law; see NJSA 9:2-4(c). Consistent with current social science research, and the changes of law in a majority of other states, the NJ Court has again altered its opinion on relocation matters in family law. In Bisbing, the Court held that In place of the prior standard, “courts should conduct a best interests analysis to determine "cause" under N.J.S.A. 9:2-2 in all contested relocation disputes in which the parents share legal custody.”
To be clear, it doesn’t mean that the existing custody arrangements are not to be considered the guidelines. Instead, the Legislature unequivocally declared that that custody arrangement must serve the best interests of the child.
The Court concluded that the trial court should determine whether relocation was in the children’s best interests. Because the custody arrangement was made an agreed part of the divorce decree, the parent seeking to move is required to show that the changed circumstances justify a modification of the prior agreement. Ultimately, however, it is no longer incumbent upon the trial court to determine whether the bad faith was evidenced as a part of the intended relocation. The question has now become whether the relocation is in the children’s best interests under N.J.S.A. 9:2-4(c).
Contact UsAt the Law Offices of Sam Stoia, we realize that even under the best of circumstances, removal cases are often difficult for both parents. There is no charge for our initial consultation to discuss your circumstances. Contact our office to schedule an appointment.