When Can a Custodial Parent Relocate Out of State With the Children, and What if The Divorcing Parties Have a Non-Relocation Agreement?

Bisbing v. Bisbing, 445 N.J. Super. 207 (App. Div. 2016).  N.J.S.A. 9:2-2 provides that children of divorced parents cannot be removed from the jurisdiction of the Superior Court “without the consent of both parents, unless the court, upon cause shown, shall otherwise order.”  A custodial parent who moves out of New Jersey may wish to take children along.  Baures v. Lewis, 167 N.J. 91 (2001), “accords particular respect to the custodial parent’s right to seek happiness and fulfillment” by moving.  But what if the parties entered into a written agreement limiting the ability to relocate without consent?  This opinion by Judge Koblitz addresses that question.

The parties, both of whom were professionals, separated in 2013, and the wife began a long-distance relationship with a Utah resident.  In March 2014, the parties entered into a marital settlement agreement.  That agreement provided for joint legal custody of their children.  The wife got primary residential custody, on condition that she not relocate out of New Jersey.  The husband got liberal parenting time, and he remained actively involved in the children’s lives and activities.

In April 2014, a final judgment of divorce, which incorporated the marital settlement agreement, was entered.  There was no alimony for the wife.  In July 2014, the wife told the husband that she was leaving her job to become a full-time parent.

In January 2015, the wife told the husband that she was moving to Utah to marry the Utah resident.  She sought permission to take the children with her.  The husband declined.  Two months later, the wife filed a motion seeking to relocate to Utah with the children.  The Family Part granted that motion without a plenary hearing.  Thereafter, the wife and children “left for a vacation to Utah.”  Three days later, the wife permanently relocated with the children in Utah.

The husband appealed.  Judge Koblitz noted that, in general, appellate courts defer to Family Part findings of fact.  But legal determinations get de novo review.

The panel reversed and remanded for a plenary hearing.  Judge Koblitz outlined the following parameters.  First, the Family Part needed to determine whether the wife negotiated the marital settlement agreement in bad faith.  If so, a “best interests of the child” analysis would have to be performed in deciding whether the children could be moved.

If the husband did not show bad faith, the issue would then become whether the wife could prove “a substantial unanticipated change in circumstances warranting avoidance of the agreed-upon non-relocation provision and simultaneously necessitating a Baures analysis.”  If the wife could not show an unanticipated change in circumstances, the “best interest of the child” analysis would again be required.

The Baures analysis to which Judge Koblitz referred involves a two-part test.  The movant must show that “(1) there is a good faith reason for the move and (2) that the move will not be inimical to the child’s interests.”  Once the movant makes a prima facie showing, the burden shifts to the opponent to produce contrary evidence.  Twelve factors inform the Baures analysis.

Judge Koblitz recognized that the Baures procedure is “favorable” to a spouse who seeks to relocate.  But the wife would have to travel a daunting path to get to a Baures analysis.  The husband might be able to show bad faith, and marital settlement agreements are strongly favored, so that showing changed circumstances could be challenging.

The wife “in a written and voluntarily agreed-upon contract, specifically surrendered her ‘freedom to seek a better life’ in another state while obtaining primary custody of the children, and was well aware of that agreement when she chose to remarry and move far away.”  The parties will have the chance to use Judge Koblitz’s roadmap on remand.