Monday, August 14, 2017

Recent NJ Supreme Court decision seriously changes the rules for a parent's ability to move out of state when other parent disapproves

A recent decision of the New Jersey Supreme Court called Bisbing v. Bisbing, decided only on August 8, 2017, has provided a major shift in balancing the interests of custodial and non-custodial parents when a custodial parent seeks to move out-of-state with his or her child(ren). In looking at this recent decision, we first examine what the courts had to look to in such contests when one parent sought to move and the other did not consent.

Since 2001, there has been a standard that a custodial parent (or parent with primary residence) had to meet when seeking to move out-of-state with his or her child or children. Under the guidelines set forth in the NJ Supreme Court decision of Baures v. Lewis, a case decided in 2001, the Court made a distinction between two types of applications when a parent sought permission to move. The first was when both parents shared physical custody of their offspring. In that case a change of custody application was required. The second was when the custodial parent had primary residential custody and the main issue was providing for visitation with the parent of alternative residence. The New Jersey Supreme Court, guided by various social sciences studies of the time, believed that there should be a presumption in favor of permitting a parent to move provided that the request was being made in good faith and not simply as an excuse to reduce the other parent’s time with the child; and 2) that there would be no harm to the child or children; and 3) that the parent of alternative residence (non-custodial parent) had been offered a reasonable visitation schedule that could include physical visits as well as things like phone calls, emails, Skype and the like.

Once the custodial parent had shown that the request to move was being made in good faith and offered evidence that there were sufficient reasons for such a move such as better employment opportunities, family support networks, better neighborhoods, that there had been fair dealings between the parents in the past and other factors (a total of twelve in all) then the parent of alternate residence would need to show why permitting such a move would be harmful to the children.

Bisbing v. Bisbing, A-2-16 (077533) has basically placed petitions to move out-of-state on the same footing as other requests to change or modify custody or visitation plans, whether court ordered or contained in consent agreements. The New Jersey Supreme Court notes that some of the social science studies it relied on in its Baures v. Lewis decision had not held up over time. It also noted that many other states had abandoned the principals of believing that it was not necessarily a harm to the child to have reduced contact with the parent of alternate residence.

The Court noted in Bisbing v. Bisbing, citing NJSA 9:2-4 that in determining custody arrangements, the court should focus on  “arrangements that promote a child’s continuous interaction with both parents” and NJSA 9:2-2 that contains a policy favoring “frequent and continuing contact with both parents after” separation or divorce. It also cited the policy that “the rights of both parents shall be equal.”  The Court looked at the standards applied in other custody and visitation applications that require a showing by the petitioning party that a “change of circumstances warranting modification” has occurred.

The Court took issue with its decision in Baures which required a petitioning parent who had primary custody of a child only to show that the move would not have an adverse affect on the child and that the modification would not have an “adverse affect” on the noncustodial parent’s ability to maintain a relationship with the child. It also disputed the notion held in Baures that a relocation that benefited the custodial parent would also benefit the child. While recognizing the effect of precedence when overruling its decision in Baures it mentioned that the Supreme Court had come to its conclusions in that case largely upon findings in the social sciences that had not necessarily held up upon further investigation.  More recent studies questioned the supposed limited effect of allowing reduced contact with the non-custodial parent. In fact, it began asserting that having an active contact with both parents was beneficial to the child.

The outcome in Bisbing v. Bisbing is to place a dispute between parents when a custodial parent seeks to move out of state on the same footing as all other custody and visitation disputes. The Court holds henceforward that the same “best interests of the child” standard that applies in other applications for changes or modifications in child custody and visitation, or even changes to change a child’s surname, will apply to applications for permission to move out-of-state. Thus, there will no longer be a presumption in favor of the custodial parent in moving out-of-state to do so, after this recent significant Supreme Court decision.

Should you have plans to file a petition either for or against a parent moving out-of-state it is more important than ever to consult with a family law attorney.

Anthony Van Zwaren, Esq.
340 Clifton Avenue
Clifton, NJ

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