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Appellate Division Reaffirms that Timing is Everything When it Comes to Relocation

By Sarah Jacobs, Esq.

In a new, published case, the Appellate Division reversed a Trial Court decision permitting a custodial parent to relocate from New Jersey to Utah with the parties’ minor children; the case is now heading back to the Trial Court for a plenary hearing. This now precedential case law not only provides further guidance on the procedures to be used in the event that a relocation request comes too close in time after custody and parenting time issues settled, but also guidance on the enforceability of a provision that restricts parents’ ability to move out of state.

: In Taormina Bisbing v. Bisbing, the Mother sought permission to relocate to Utah with the parties’ eight year old twin daughters just nine months after the parties had divorced. The Father consented to the Mother moving – after all, she claimed she had to move in order to live with her then fiancé and now husband. However, there was a catch: the children had to stay with him in New Jersey in accordance with their agreement not to relocate outside of the state. Needless to say, the parties ended up in Court on the Mother’s relocation application. The Trial Court granted same without much examination of the parties’ circumstances or the terms of their Marital Settlement Agreement negotiated the prior year. Approximately four months after the relocation request was filed, the Mother and the parties’ twin daughters permanently relocated to Utah – just fifteen months after the divorce.

In its published decision, the Appellate Division found numerous points of error – first, that the Trial Court disregarded the timing of the Mother’s application and the standards to be applied by the Trial Court in such situations, and second, that the parties’ agreement not to relocate was ignored and the Mother was not required to support her case as required on an application to modify a negotiated agreement.

In the parties’ Settlement Agreement, the Mother was designated as the Parent of Primary Residence on the condition that she not relocate from the state of New Jersey. In fact, the parties agreed to live within close proximity of one another, and that they could only relocate outside New Jersey with the written consent of the other parent. If either parent were to move outside of the agreed upon proximity, the parties agreed they would have to review the custody and parenting time arrangement, as such a move would have a “detrimental impact upon the frequency and duration of the contact” between the children and the Father.

The Appellate Division found that not enough attention was paid to the timing of Mother’s request, nor did the Court bother to determine if her request was made in good faith. Such scrutiny was required by a prior holding of the Trial Court in Shea v. Shea, a case involving a request for relocation made just four months after the parties had settled their divorce. In Shea, the Court held that if 1) the relocation application comes too soon after the entry of the Judgment of Divorce; and 2) the relocating party was aware at the time of the settlement of the reason(s) underlying their future relocation application, the relocating party would have show that the move was in the best interests of the child rather than under the often more favorable analysis (to relocating parties) pursuant to Baures v. Lewis, which provides that the relocating party must show that they have a good faith reason for the move and that the move will not be inimical to the child’s interests. By looking at what the moving party knew at the time of the settlement, and requiring that the analysis be best interests, and not Baures, the parties would essentially be placed in the same position as they had been before the settlement. It was further found necessary to proceed in such a manner to discourage a “disingenuous settlement” designed solely to obtain the more favorable Baures approach to relocation.

In light of the prevailing case law, the Appellate Division held that the Trial Court should have held a plenary hearing to determine whether or not Mother had negotiated the custody and parenting time terms of the Marital Settlement Agreement in good faith, or with an eye towards her future relocation application.

The Appellate Division’s analysis did not end there – even if the Mother was not found to have acted with a malicious and manipulative intent in order to secure an easier relocation later on, the parties had still agreed not to leave the state of New Jersey. The Appellate Division gave much credence to the parties’ “proximity clause” and held that the Mother should have been required by the Trial Court to show an unanticipated change in the parties’ circumstances since the entry of the Marital Settlement Agreement, and that the terms of the Agreement were no longer in the best interests of the children.

If you find yourself in the midst of negotiations on custody and parenting time provisions, and believe relocation may be on the horizon for you or your significant other, or if you are mulling a relocation just after the dust has settled on your Settlement Agreement, contact Jacobs Berger, LLC, today. A consultation with one of our experienced attorneys will help you understand how both the old and new case law may impact your request (or the other party’s request) for relocation, and what standard of law may be applicable in your case.

For more information, or to talk about your child custody relocation options with one of our licensed and experienced New Jersey matrimonial law attorneys, give our office a call at 973-710-4366.

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