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Out-of-State Relocation Standard in Divorce Cases Changed to “Best Interest” Analysis

Aug 17, 2017 | Written by: William J. Rudnik, Esq. |

In New Jersey, the statute N.J.S.A. 9:2-2 allows a parent to relocate out of state with the parties’ children if the other parent agrees or if the court issues an order allowing the move.  In cases where there is a true shared custody arrangement or equal parenting time, the court would apply a “best interest” analysis, similar to the analysis in deciding custody of children in a divorce case.  In cases where there is a parent who has primary residential custody (parent who has the majority of overnight parenting time), the standard the court applied for the last sixteen years in these relocation cases is set forth in Baures v. Lewis, 167 N.J. 91 (2001).

Baures was a New Jersey Supreme Court case that previously set the standard for a parent with primary residential custody seeking to relocate children out of state over the objection of the other parent.  The parent of primary residence seeking to move had to demonstrate that 1) he or she had a good faith reason for the move; and 2) the move would not be “inimical to the child’s interest.”  What that standard had come to mean over the years is essentially that the parent seeking to move had a basis for the move (good faith reason) such as a new job, a move closer to family, a new spouse being transferred, or a relocation to marry a new spouse.  The good faith basis for the move was a very low standard and was very easy for the moving party to establish.  The second prong of the requirement essentially required the parent to demonstrate that the move was not harmful to the child.  Thus, in cases where the new school system was similar in quality to the current school, the activities offered for the child to participate in at the new location were similar, and the child could still have a relationship with the other parent, typically the court allowed the move with the child.  This standard operated as a presumption in favor of the move, which was difficult for the non-moving party to overcome.

The Supreme Court in Baures created this two-prong analysis based on social science research and trends in the law at that time.  However, since the Baures decision, especially in more recent years, there has been intense debate among social scientists on the impact of relocation on children of divorced parents.  Baures relied on the notion that what is good for the custodial parent is good for the child.  However, currently there is no consensus among experts as to the impact, as relocation affects children in many different ways. In addition, the progression in the law recognizing a custodial parent’s presumptive right to relocate with children has not materialized.  In fact, today the majority of states have imposed a “best interest” test when considering a relocation application filed by a custodial parent, rather than a presumption in favor of the parent of primary residence who wishes to move.

In recent years, there has been a strong push by family law attorneys to change the Baures standard to a “best interest” analysis.  As a result, new legislation was proposed by the New Jersey State Bar Association to make clear under N.J.S.A. 9:2-2 that the Baures standard would no longer be utilized and instead a “best interest” analysis would be applied in all relocation matters.  This legislation, known as the New Jersey Relocation of Children Act, was initially introduced back in November of 2015.  The Bill remained in committee and was never brought to a vote.  While the legislation was renewed in 2016, again it was stuck in committee and was not brought to a vote. 

The Supreme Court recently had the opportunity to address the Baures v. Lewis standard in the case of Bisbing v. Bisbing.  The Supreme Court decided this matter on August 8, 2017.  Based on this decision, the legislation that was previously introduced is no longer necessary.  In Bisbing, as a result of the New Jersey State Bar Association’s request that the Supreme Court review the Baures v. Lewis standard, the Court reviewed the underlying basis for that decision.  The Supreme Court determined that because the social science in Baures is in dispute and there is no consensus that “what is good for the custodial parent is good for the child,” along with the fact that most of the other states use a “best interest” analysis for relocation matters, the Baures standard should no longer apply to relocation cases.  In addition, the Court noted that by using the Baures standard where relocation relates to one party’s status as the custodial parent (parent of primary residence), it may have generated unnecessary disputes regarding that designation during the divorce process.  Accordingly, the Court decided to abandon the Baures v. Lewis standard and replace it with a “best interest” analysis.  Thus, in all contested relocation disputes in which the parents share joint legal custody, regardless of the residential custody arrangement, the Court will use a “best interest” analysis similar to the analysis used in a custody dispute.  (See N.J.S.A. 9:2-4(c)). 

Ultimately, what this means from a practical standpoint is that it will become more difficult for a parent to relocate out of state with the parties’ children if the other party objects.  It will come down to a custody dispute as to whether the children’s best interests are served by being with one parent in a new location out of state, or with the other parent here in New Jersey.  This decision puts the parents on equal footing in terms of a relocation dispute without any presumption.  Typically, such disputes will require a hearing before the court, which is similar to a trial.  In some cases, psychologists will be used to opine as to whether the move is in the children’s best interest (or if staying in New Jersey is in their best interest).  However, in situations where the children are better served by being with the parent who is moving out of state, despite the more stringent analysis, it is likely that parent will still be able to move with the children.  Depending on the age of the children, their opinion on whether to move may also be considered as part of the process, and the Statute allows children of a sufficient age (“suitable age”) to either consent or refuse to consent to a move out of state.

In the event you or your former spouse are considering a relocation out of state with your children, please make sure to consult with an attorney to find out how this new standard would apply to the facts of your case.

If you want to find out more about this issue, please contact me at 908-735-5161 or via email.


William J. Rudnik, Esq. is certified by the NJ Supreme Court as a Matrimonial Law Attorney.  In addition to handling divorce litigation, he is qualified as a Mediator in the field of Family Law under the New Jersey Court rules, and he is trained in Collaborative Divorce. Contact Mr. Rudnik at 908-735-5161 or via email.