The Supreme Court Abandons Baures v. Lewis in Family Law Child Relocation Cases

Bisbing v. Bisbing, 230 N.J. 309 (2017).  Justice Patterson began her opinion in this case, for a unanimous Court, as follows.  “This appeal arises from a trial court’s post-judgment determination authorizing a mother to relocate with her children out of state, notwithstanding their father’s objection to the children’s move.  It requires that we address the showing necessary to establish ’cause’ under N.J.S.A. 9:2-2 for the entry of an order authorizing a parent to relocate out of state with his or her child, despite the other parent’s opposition to the child’s interstate move.”

As discussed here, the “cause” analysis, in cases where the relocating parent has primary custody, was until today governed by a two-part test, informed by twelve factors, laid out in Baures v. Lewis, 167 N.J. 91 (2001).  Today, however, the Court “depart[ed]” from that test and instead made a single standard applicable to all relocation cases, regardless of whether there is equally shared custody or one parent with primary custody.

Justice Patterson observed that the Court adopted the Baures test, which favors the custodial parent (referred to in today’s decision as “the parent of primary residence”), in significant part because social science research…  at that time tethered the best interests of the child to the custodial parent’s well-being.”  Two studies by Judith S. Wallerstein were particularly influential to the Court.  The Court also perceived a trend in the law “significantly eas[ing] the burden on custodial parents in removal cases” at that time.

Since Baures, however, the Wallerstein studies have been subjected to decidedly mixed reviews by scholars (though some of the critical scholarship cited by Justice Patterson pre-dated Baures).   Justice Patterson noted other research (both articles cited again pre-dated Baures)  that stressed “the critical importance of a child’s relationship with his or her parent of alternate residence,” that is, the parent who is not the custodial parent.  Thus, the Court now sees the statement in Baures that “what is good for the custodial parent is good for the child” as not “universally true.”

Reinforcing the evolution of the social science literature was the fact that “the standard in Baures did not represent a lasting trend in the law.”  Justice Patterson exhaustively (including in footnotes that spanned multiple pages) cataloged the decisional and statutory law in other jurisdictions that backed up that statement.  Only a minority of jurisdictions now favor the custodial parent as Baures did.

Finally, “by tethering the relocation standard to one party’s status as the parent of primary residence, the  Baures standard may generate unnecessary disputes regarding that designation.”  Indeed, in Bisbing, there was an issue as to whether the custodial parent negotiated for that status while already intending to relocate.  For all those reasons, the Court returned to first principles, making the best interests of the child the polestar in all relocation cases.

Justice Patterson noted that the Court does not “lightly alter one of [its] rulings,” since stability in legal standards is important.  Departing from stare decisis requires “special justification,” but such justification was present here.

Finally, Justice Patterson addressed and rejected plaintiff’s argument, “unsupported by citation to federal or state authority,” that N.J.S.A. 9:2-2 unconstitutionally violated her right to travel.  “The statute places no restraint on plaintiff’s right to travel.  It does, however, place a limitation on her claimed right to permanently relocate her children from our State without the court’s approval when another parent’s rights and the child’s best interests are at stake.”

The Court affirmed the Appellate Division’s decision, which had ordered a remand, as modified.  That remand will look different now than what the Appellate Division, bound as it was by Baures, had envisioned.