Jaime Taormina Bisbing v. Glenn R. Bisbing, III (077533) (Sussex County and Statewide) , 230 N.J. 309 ( 2017 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
Jaime Taormina Bisbing v. Glenn R. Bisbing, III (A-2-16) (077533)
Argued March 29, 2017 -- Decided August 8, 2017
PATTERSON, J., writing for the Court.
In this appeal, the Court addresses the showing necessary to establish “cause” under N.J.S.A. 9:2-2 for the
entry of an order authorizing a parent to permanently relocate out of state with his or her child, despite the other
parent’s opposition to the child’s interstate move.
Following their separation, plaintiff Jaime Taormina Bisbing and defendant Glenn R. Bisbing, III, agreed
on the terms of a Marital Settlement Agreement (Agreement), which they executed on March 8, 2014. With respect
to their twin daughters, the Agreement provided that plaintiff would have primary residential custody. It also
included a relocation provision, stating, in part, that “[n]either party shall permanently relocate with the Children
from the State of New Jersey without the prior written consent of the other.” On April 16, 2014, the trial court
entered a judgment of divorce, incorporating the terms of the Agreement. On January 8, 2015, plaintiff informed
defendant that she intended to marry Jake Fackrell, a Utah resident whom she had begun dating prior to the parties’
divorce. Plaintiff asked defendant to consent to the permanent relocation of the children to Utah. Defendant replied
that plaintiff was free to move to Utah, but that the children must remain in New Jersey with him.
Plaintiff filed a motion pursuant to N.J.S.A. 9:2-2, seeking an order permitting her to permanently relocate
the children to Utah. Defendant contended that plaintiff had negotiated the Agreement in bad faith, securing his
consent to her designation as parent of primary residence without informing him that she contemplated relocating.
Without holding a plenary hearing, the trial court applied the standard established in Baures v. Lewis, 167 N.J. 91,
118-20 (2001): A parent with primary custody seeking to relocate children out of state over the objection of the
other parent must demonstrate only that there is a good-faith reason for an interstate move and that it “will not be
inimical to the child’s interests.” The court granted plaintiff’s application for relocation, explaining that she
presented a good-faith reason and that the move would not be inimical to the children’s interests. Plaintiff moved
with the children to Utah and enrolled them in an elementary school.
The Appellate Division reversed and remanded for a plenary hearing. 445 N.J. Super. 207 (App. Div.
2016). The panel found that there was a genuine issue of material fact as to whether plaintiff negotiated the custody
provisions of the Agreement in good faith. It ruled that if the trial court concluded that she had acted in bad faith, it
should resolve the relocation motion using the best interests standard instead of the more lenient “not . . . inimical to
the child’s interests” standard of Baures. The panel held that if defendant failed to prove plaintiff’s bad faith, the
trial court would then determine whether plaintiff proved a substantial and unanticipated change in circumstances
that would permit her to avoid the Agreement’s relocation provision. The panel directed the trial court to apply the
best interests of the child standard if plaintiff failed to prove a substantial and unanticipated change.
Following the panel’s decision, plaintiff returned with her children to New Jersey. The trial court denied
her motion for a stay and ordered the parties to abide by the residency provisions in the Agreement. The Court
granted plaintiff’s petition for certification. 227 N.J. 262 (2016).
HELD: The Court recognizes a “special justification” to abandon the standard it established in Baures v. Lewis,
167 N.J. 91 (2001) for determining the outcome of contested relocation determinations pursuant to N.J.S.A. 9:2-2.
In place of the Baures standard, courts should conduct a best interests analysis to determine “cause” under N.J.S.A.
9:2-2 in all contested relocation disputes in which the parents share legal custody.
1. New Jersey’s custody statute was enacted to further the public policy “to assure minor children of frequent and
continuing contact with both parents after” separation or divorce. N.J.S.A. 9:2-4. The Legislature provided that
“[i]n any proceeding involving the custody of a minor child, the rights of both parents shall be equal,” ibid., and
prescribed a non-exclusive list of factors to guide a court charged to determine the custody arrangement that most
effectively serves the child’s best interests. A custody arrangement adopted by the trial court is subject to
modification based on a showing of changed circumstances, with the court determining custody in accordance with
the best interests standard of N.J.S.A. 9:2-4. (pp. 15-18)
2. N.J.S.A. 9:2-2 requires a showing of “cause” before a court will authorize the permanent removal of a child to
another state without the consent of both parties. In Baures, the Court held that in the shared-custody setting, the
trial court should treat the relocation application as “governed initially by a changed circumstances inquiry and
ultimately by a simple best interests analysis.” Id. at 116. But if the parent seeking removal is the custodial parent,
that parent would establish “cause” under N.J.S.A. 9:2-2 if he or she proved good faith and that the move would not
be inimical to the child’s interest. The Court identified two developments in support of its alteration of the
governing standard for N.J.S.A. 9:2-2 relocation applications: (1) social science research indicated that when a
relocation benefits a “custodial parent,” it will similarly benefit the child; and (2) the growing trend in the law easing
restrictions on the custodial parent’s right to relocate with the children. Because the parties’ custodial arrangement
is potentially dispositive when a court determines whether to authorize relocation under Baures, a collateral dispute
regarding the parties’ good faith in their custody negotiations may arise. In such cases, the Appellate Division has
held that the best interests standard would apply rather than the Baures standard. (pp. 18-25)
3. In considering whether to retain the Baures standard as the benchmark for contested relocation determinations,
the Court recognizes that it has always required a departure from precedent to be supported by some special
justification. Such justification might be found when experience teaches that a rule of law has not achieved its
intended result. (pp. 25-26)
4. In deciding Baures, the Court did not intend to either diverge from the best interests standard at the core of the
custody statute or circumvent the legislative policy giving parents equal rights in custody proceedings. Instead, the
Court created the two-pronged “good faith” and “not . . . inimical to the child” test based on social science research
and trends in the law. Since the Baures decision, however, the vigorous scholarly debate among social scientists
who have studied the impact of relocation on children following divorce reveals that relocation may affect children
in many different ways. Moreover, the progression in the law toward recognition of a custodial parent’s
presumptive right to relocate with children, anticipated by this Court in Baures, has not materialized. Today, the
majority of states impose a best interests test when considering a relocation application filed by a custodial parent;
some have recently abandoned the presumption in favor of that parent. The standard adopted in Baures did not
represent a lasting trend in the law. Moreover, by tethering the relocation standard to one party’s status as the
custodial parent, the Baures standard may generate unnecessary disputes regarding that designation. Accordingly,
the Court recognizes a “special justification” in this case to abandon that standard. (pp. 26-35)
5. In place of the Baures standard, courts should conduct a best interests analysis to determine “cause” under
N.J.S.A. 9:2-2 in all contested relocation disputes in which the parents share legal custody—whether the custody
arrangement designates a parent of primary residence and a parent of alternate residence, or provides for equally
shared custody. A number of the statutory best interests factors will be directly relevant in typical relocation
decisions, and additional factors not set forth in the statute may also be considered in a given case. Contrary to
plaintiff’s contention, the relocation constraints imposed by N.J.S.A. 9:2-2 do not infringe on the relocating parent’s
constitutional right to interstate travel. (pp. 35-39)
6. The Court remands to the trial court for a plenary hearing to determine whether the custody arrangement set forth
in the parties’ Agreement should be modified to permit the relocation of their daughters to Utah. It does not agree
with defendant’s assertion that by consenting to the interstate relocation provision of the Agreement, plaintiff
waived her right to a judicial determination of her relocation application under N.J.S.A. 9:2-2. However, plaintiff
must demonstrate changed circumstances to justify modification of the Agreement, and, because the relocation is
permanent, she must demonstrate that there is “cause” for an order authorizing it. In that inquiry, “cause” should be
determined by a best interests analysis in which the court will consider all relevant factors set forth in N.J.S.A. 9:2-
4(c), supplemented by other factors as appropriate. Because the best interests standard applies to the determination
of “cause” notwithstanding plaintiff’s designation as the parent of primary residence, the court need not decide
whether plaintiff negotiated the parties’ Agreement in bad faith. (pp. 39-41)
The judgment of the Appellate Division is MODIFIED and AFFIRMED, and the matter is REMANDED
to the trial court for proceedings in accordance with this opinion.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, FERNANDEZ-VINA,
SOLOMON, and TIMPONE join in JUSTICE PATTERSON’s opinion.
2
SUPREME COURT OF NEW JERSEY
A-2 September Term 2016
077533
JAIME TAORMINA BISBING,
Plaintiff-Appellant,
v.
GLENN R. BISBING, III,
Defendant-Respondent.
Argued March 29, 2017 – Decided August 8, 2017
On certification to the Superior Court,
Appellate Division.
Paul H. Townsend argued the cause for
appellant (Townsend, Tomaio & Newmark,
attorneys; Paul H. Townsend, of counsel and
on the brief; Valerie R. Wane, on the
brief).
Matheu D. Nunn argued the cause for
respondent (Einhorn, Harris, Ascher,
Barbarito & Frost, attorneys).
Timothy F. McGoughran argued the cause for
amicus curiae New Jersey State Bar
Association (Thomas H. Prol, President, of
counsel; Timothy F. McGoughran, Brian G.
Paul, Derek M. Freed, and Albertina Webb, on
the brief).
JUSTICE PATTERSON delivered the opinion of the Court.
This appeal arises from a trial court’s post-judgment
determination authorizing a mother to permanently relocate with
her children out of state, notwithstanding their father’s
objection to the children’s move. It requires that we address
1
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.
Plaintiff Jaime Taormina Bisbing and defendant Glenn R.
Bisbing, III, divorced when their twin daughters were seven
years old. Their judgment of divorce incorporated their
settlement agreement that plaintiff would be the parent of
primary residence and defendant would be the parent of alternate
residence. It provided that neither party would permanently
relocate out of state with the children without the prior
written consent of the other. Several months after the parties’
divorce, plaintiff advised defendant that she intended to marry
the man whom she had been dating, a resident of Utah, and sought
an order permitting her to move the children to that state.
The trial court applied the standard set forth in this
Court’s decision in Baures v. Lewis, 167 N.J. 91, 118-20 (2001).
Under Baures, a parent with primary custody seeking to relocate
children out of state over the objection of the other parent
must demonstrate only that there is a good-faith reason for an
interstate move and that the relocation “will not be inimical to
the child’s interests.” Ibid. The trial court found that
plaintiff sought to relocate for a good-faith reason and that
the relocation would not be inimical to the interests of the
2
parties’ daughters. The trial court authorized the children’s
relocation to Utah, conditioned on an agreement allowing
defendant scheduled visitation and regular communication with
his daughters following the move.
Defendant appealed, and an Appellate Division panel
reversed the trial court’s judgment. The panel held that if
defendant were to make a showing on remand that plaintiff had
negotiated the parties’ custody agreement in bad faith, the
trial court should not apply the “inimical to the child’s
interest” standard of Baures but should instead determine
whether relocation would be in the best interests of the child.
The panel thus imposed on a plaintiff who has negotiated a
custody arrangement in bad faith a higher burden of proof on the
question of “cause” under N.J.S.A. 9:2-2 than the burden imposed
under Baures. We granted plaintiff’s petition for
certification.
We affirm and modify the Appellate Division’s judgment. We
depart from the two-part test that Baures prescribed for a
relocation application brought by a parent of primary residence.
We apply the same standard to all interstate relocation disputes
under N.J.S.A. 9:2-2 in which the parents share legal custody --
cases in which one parent is designated as the parent of primary
residence and the other is designated as the parent of alternate
residence and cases in which custody is equally shared. In all
3
such disputes, the trial court should decide whether there is
“cause” under N.J.S.A. 9:2-2 to authorize a child’s relocation
out of state by weighing the factors set forth in N.J.S.A. 9:2-
4, and other relevant considerations, and determining whether
the relocation is in the child’s best interests.
Accordingly, we modify and affirm the Appellate Division’s
judgment and remand to the trial court for a plenary hearing to
determine whether the proposed relocation of the parties’
daughters to Utah is in the children’s best interests.
I.
Plaintiff and defendant were married on August 27, 2005.
Their twin daughters were born on November 17, 2006.
The family lived in Stanhope, near the parties’ respective
families in Pennsylvania. The children’s grandmothers assisted
with child care while plaintiff and defendant worked. Both
parties were employed outside of the home during the marriage.
Plaintiff commuted to New York City for her job, and defendant
worked in New Jersey.
In 2013, after eight years of marriage, plaintiff and
defendant separated. Without legal counsel, but with the
assistance of a mediator, they agreed on the terms of the
Marital Settlement Agreement (Agreement). They executed that
Agreement on March 8, 2014.
4
The parties’ Agreement provided that they would share
“joint legal custody, with primary residential custody being
with the mother, of the un-emancipated [c]hildren born of the
marriage,” and that plaintiff “shall be the custodial parent.”1
It stated that the children would stay with defendant every
other weekend and one weeknight every other week. The parties
agreed on a parenting schedule for holidays, acknowledged that
they both were entitled to attend all of their children’s
events, and granted one another a right of first refusal if one
parent were unable to care for the children during parenting
time reserved for that parent.
1 In this opinion, we use the terms “parent of primary
residence” and “parent of alternate residence,” rather than the
terms “custodial parent” and “noncustodial parent,” to describe
the parties’ respective parenting roles under their Agreement.
See Fall & Romanowski, Child Custody, Protection & Support §
21:2-1(c) (2017) (“Use of the antithetical designations
‘custodial’ or ‘noncustodial’ parent and ‘sole’ or ‘joint’
physical custody should be avoided in favor of terms that more
accurately describe the joint parenting arrangement that is
preferred and typically exercised today.”). The Child Support
Guidelines use the term “parent of primary residence” to denote
“[t]he parent with whom the child spends most of his or her
overnight time,” or “[i]f the time spent with each parent is
equal . . . the parent with whom the child resides while
attending school.” Child Support Guidelines, Pressler &
Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at
www.gannlaw.com (2017); Fall & Romanowski, supra, Appendix IX-A
at 1073-74. The Guidelines use the term “parent of alternate
residence” to denote “the parent with whom the child resides
when not living in the primary residence.” Child Support
Guidelines, Pressler & Verniero, supra, Appendix IX-A to R. 5:6A
at www.gannlaw.com; Fall & Romanowski, supra, Appendix IX-A at
1073-74.
5
The Agreement included a provision addressing any future
disputes regarding the relocation of the children:
Relocation. The parties agree that each shall
inform the other with respect to any change of
residence concerning himself or herself or the
said minor Children for the period of time
wherein any provision contained in this
Agreement remains unfulfilled. The parties
represent that they both will make every
effort to remain in close proximity, within a
fifteen (15) minute drive from the other.
Neither party shall permanently relocate with
the Children from the State of New Jersey
without the prior written consent of the
other. Neither parent shall relocate
intrastate further than 20 miles from the
other party. In the event either party
relocates more than 20 miles from the other
party, the parties agree to return to
mediation to review the custody arrangement.
In the event a job would necessitate a move,
the parties agree to discuss this together and
neither will make a unilateral decision.
Neither party shall travel with the minor
Children out of the United States without the
prior written consent of the other party.
The parties hereby acknowledge that the
Children’s quality of life and style of life
are provided equally by Husband and Wife.
The parties hereby acknowledge a direct causal
connection between the frequency and duration
of the Children’s contact with both parties
and the quality of the relationship of the
Children and each party.
The parties hereby acknowledge that any
proposed move that relocates the Children
further away from either party may have a
detrimental impact upon the frequency and
duration of the contact between the Children
and the non-moving party.
[(emphasis added).]
6
On April 16, 2014, the trial court entered a judgment of
divorce, incorporating the terms of the parties’ Agreement.
In the months that followed their divorce, plaintiff and
defendant lived near one another and cooperated in the care of
their children. Defendant was not restricted to the parenting
time prescribed by the Agreement -- his alternate-weekend time
with the children often extended until Monday morning, and the
children frequently stayed overnight at his home after their
scheduled weekday evening visit. The record indicates that
during this initial post-judgment period, the parties sent one
another cordial and cooperative e-mails regarding their
children’s schedules.
Plaintiff took primary responsibility for the girls’ school
and extracurricular activities. Defendant was also extensively
involved in his daughters’ lives. He served as their soccer
coach, assisted with their ski team, and oversaw their
activities at church. Because plaintiff departed for her job in
New York City early in the morning, defendant went to her home
several mornings each week to assist the children as they
prepared for school.
Sometime prior to the entry of the judgment of divorce,
plaintiff began dating Jake Fackrell, a Utah resident who
operated a business in Idaho. The parties dispute whether
plaintiff told defendant that her relationship with Fackrell was
7
serious before defendant agreed that plaintiff would be
designated as the parent of primary residence. Plaintiff
contends that she candidly discussed the fact that she was
dating Fackrell with defendant prior to executing their
Agreement; defendant asserts that plaintiff did not inform him
that her relationship with Fackrell was serious until the
divorce proceedings were concluded.
Effective July 1, 2014, plaintiff resigned from her
employment. She later told the trial court that she left her
job to spend more time with her daughters and that Fackrell had
begun to support her financially. Plaintiff stated that she
brought her daughters on trips to visit Fackrell and his
children in Utah and that the children enjoyed their time in
Utah.
According to defendant, following her resignation from her
job, plaintiff restricted defendant’s parenting time to the
precise terms of the parties’ Agreement and limited his family’s
access to the children.
On January 8, 2015, plaintiff told defendant that she
intended to marry Fackrell and move to Utah. Plaintiff and
Fackrell were married on June 29, 2015.
Plaintiff asked defendant to consent to the permanent
relocation of the children to Utah. Defendant replied that
plaintiff was free to move to Utah, but that the children must
8
remain in New Jersey with him. Plaintiff contends that
following her request for permission to move the children,
defendant refused to engage in meaningful conversations about
her proposed move or the parties’ parenting time.
Each party retained counsel to negotiate a settlement, but
they were unable to resolve their dispute.
II.
Plaintiff filed a motion pursuant to N.J.S.A. 9:2-2. She
sought an order permitting her to permanently relocate the
children to Utah or, in the alternative, authorizing their
temporary move to Utah pending a plenary hearing. Plaintiff
offered to negotiate a schedule for defendant’s visitation and
communication with the children after their move.
In support of her motion, plaintiff filed a certification
stating that she planned to marry Fackrell and that his business
interests precluded him from moving to New Jersey. She told the
trial court that the children disliked their school in New
Jersey and would have better educational opportunities in Utah.
Plaintiff assured the court that after the children’s departure
for Utah defendant would still be afforded regular visitation
with the children in New Jersey and Utah, as well as the
opportunity to communicate with them on a daily basis by
telephone and various forms of electronic communication. She
argued that under the Baures standard, the relocation would not
9
be inimical to the children’s interests because it would enable
her to stay home with the children instead of returning to work
and it would benefit the children to have a stay-at-home parent.
Defendant contended that plaintiff had negotiated the
parties’ Agreement in bad faith and sought the opportunity to
prove that claim at a plenary hearing. Defendant argued that
plaintiff secured his consent to her designation as parent of
primary residence without informing him that she contemplated
relocating to Utah in order to gain an advantage under the
Baures standard. He asserted that the relocation would make it
impossible for him to maintain a full and continuous
relationship with his daughters and that electronic
communications would not serve as a substitute for the time that
he would spend with them were they to remain in New Jersey.
Applying the Baures test without conducting a plenary
hearing, the trial court determined that plaintiff presented a
good-faith reason for her planned relocation and that the move
would not be inimical to the children’s interests. The court
acknowledged that the children’s move to Utah would reduce the
time spent with their father but suggested that a visitation
plan would facilitate a strong, consistent relationship between
defendant and his daughters.
The trial court granted plaintiff’s application for an
order permitting her to relocate the children to Utah,
10
conditioned on the parties’ agreement on a visitation plan. The
court denied defendant’s motion to stay its order. The parties
discussed a visitation plan but were unable to reach an
agreement on that issue.
Noting that it had directed both parties to propose
visitation plans and that defendant failed to submit a proposal,
the trial court decided on a visitation schedule substantially
based on plaintiff’s proposal.2 The trial court entered a final
order permitting relocation of the children and establishing a
visitation schedule; the court declined to stay that order.
Plaintiff moved with the children to Utah and enrolled them
in an elementary school.
Defendant appealed the trial court’s order.3 An Appellate
Division panel reversed the trial court’s determination and
remanded to the trial court for a plenary hearing. Bisbing v.
2 Under that schedule, the children would visit defendant in New
Jersey for seven weeks each summer; during their fall, winter
and spring school breaks; and every other Thanksgiving.
Defendant would have the right to visit the children in Utah for
five days per month on thirty days’ notice to plaintiff, to
“have daily phone contact with [the] children as well as the
opportunity to FaceTime, Skype, or any other form of video
communication on a daily basis” and to read them “a bedtime
story once per week via video communication.”
3 Prior to the trial court’s entry of its order on relocation
and visitation, defendant sought to appeal the court’s
determination on relocation as of right pursuant to Rule 2:2-
3(a). His notice of appeal was dismissed because the trial
court had not entered a final order resolving all issues in the
matter.
11
Bisbing, 445 N.J. Super. 207, 220 (App. Div. 2016). The panel
noted that the first inquiry under Baures -- the inquiry that
determines the governing standard -- is whether the parents have
agreed on a custodial relationship in which one parent has
primary custody and the other serves a secondary custodial role.
Id. at 215 (citing Baures, supra, 167 N.J. at 116-19, 122;
O’Connor v. O’Connor, 349 N.J. Super. 381, 385 (App. Div. 2002).
The Appellate Division panel then found that there was a genuine
issue of material fact as to whether plaintiff negotiated the
custody provisions of the Agreement in good faith, due to her
ongoing relationship with Fackrell when the parties’ Agreement
was signed, her decision to leave her job shortly after the
parties’ divorce, and her application to relocate the children,
which she filed only four months after the parties agreed that
she would serve as the parent of primary residence. Id. at 216-
17.
The panel ruled that if the trial court concluded that
plaintiff had acted in bad faith, then plaintiff’s motion for an
order of relocation should be resolved under a best interests
standard, instead of the more lenient “not . . . inimical to the
child’s interests” standard of Baures. Id. at 215. It held
that if defendant failed to prove plaintiff’s bad faith on
remand, the trial court would then determine whether plaintiff
proved a substantial and unanticipated change in circumstances
12
that would permit her to avoid the Agreement’s relocation
restriction. Id. at 218-19. The panel directed the trial court
to apply the best interests of the child standard to the
relocation request if plaintiff failed to prove a substantial
and unanticipated change in circumstances. Id. at 219.
Following the Appellate Division’s decision, plaintiff
returned with her children to New Jersey. The trial court
denied plaintiff’s motion for a stay of the Appellate Division’s
order and her application for permission to temporarily relocate
the children to Utah so that they could return to their school
in that state. The trial court ordered that “neither party
shall reside with the minor children more than 15 minutes away
from the other parent,” as set forth in the Agreement. With
defendant’s consent, plaintiff moved with the children to her
parents’ home in Pennsylvania, close to the border between New
Jersey and Pennsylvania.
We granted plaintiff’s petition for certification. 227
N.J. 262 (2016).4 We also granted the application of the New
Jersey State Bar Association to appear as amicus curiae.
4 After her return with the parties’ children to New Jersey,
plaintiff did not send the children to school but initially
home-schooled them and then hired a tutor. The trial court
commenced a plenary hearing to determine how the children would
be educated, but suspended that hearing following this Court’s
grant of certification on the issue of relocation. Both parties
filed emergent applications to this Court seeking a
determination of their dispute over the children’s education.
13
III.
Plaintiff argues that the Appellate Division panel
improperly created a new standard that is amorphous, overly
broad, and unduly burdensome. She contends that the panel’s
decision will generate frivolous disputes over the relocation of
children. Plaintiff maintains that the panel should have
applied the Baures test to her application, notwithstanding the
relocation provision in the parties’ Agreement. She asserts
that the Appellate Division’s decision infringes on her
constitutional right to travel because it prevents her from
relocating to Utah.
Defendant urges the Court to enforce the terms of the
parties’ Agreement. He contends that the Appellate Division’s
standard is not new, that it will not increase litigation, and
that it will eliminate a party’s incentive to bargain for the
status of parent of primary residence in anticipation of a
planned relocation. Defendant notes that in N.J.S.A. 9:2-4 the
Legislature expressed a strong public policy in favor of custody
arrangements that promote a child’s continuous interaction with
both parents. Defendant states that a parent who shares joint
legal custody of her children with another parent and agrees not
We remanded the matter to the trial court, which ordered that
the children attend a school in New Jersey that had merged with
the school they attended prior to their move to Utah.
14
to relocate with the children without the other parent’s consent
has no constitutional right to relocate with the children.
Amicus curiae the New Jersey State Bar Association opposes
the standard applied by the panel. It contends that a parent
entering into a custody agreement does not waive his or her
right to seek a judicial determination of custody unless that
parent waives that right with clear and unmistakable language.
The New Jersey State Bar Association urges the Court to affirm
the panel’s determination but modify its instructions to the
trial court, so that the trial court will determine whether
plaintiff waived her right to a judicial decision on the
question of relocation, apply a best interests analysis if
plaintiff did waive that right, and apply the Baures standard if
she did not do so. At oral argument, the New Jersey State Bar
Association stated that the Baures standard should be reviewed.
IV.
A.
This appeal arose from the trial court’s application of
N.J.S.A. 9:2-2, a provision addressing the custody of children
after the separation or divorce of their parents. The custody
statute was enacted to further New Jersey’s public policy “to
assure minor children of frequent and continuing contact with
both parents after” separation or divorce. N.J.S.A. 9:2-4. The
Legislature declared it to be “in the public interest to
15
encourage parents to share the rights and responsibilities of
child rearing in order to effect this policy.” Ibid. It
provided that “[i]n any proceeding involving the custody of a
minor child, the rights of both parents shall be equal.” Ibid.
The custody statute affords to the Family Part a range of
options to serve the needs of children and their families:
“[j]oint custody of a minor child to both parents,” “[s]ole
custody to one parent with appropriate parenting time for the
noncustodial parent,” and “[a]ny other custody arrangement as
the court may determine to be in the best interests of the
child.” N.J.S.A. 9:2-4(a), (b), (c). The Legislature
prescribed a non-exclusive list of factors to guide a court
charged to determine the custody arrangement that most
effectively serves the child’s best interests:
the parents’ ability to agree, communicate and
cooperate in matters relating to the child;
the parents’ willingness to accept custody and
any history of unwillingness to allow
parenting time not based on substantiated
abuse; the interaction and relationship of the
child with its parents and siblings; the
history of domestic violence, if any; the
safety of the child and the safety of either
parent from physical abuse by the other
parent; the preference of the child when of
sufficient age and capacity to reason so as to
form an intelligent decision; the needs of the
child; the stability of the home environment
offered; the quality and continuity of the
child’s education; the fitness of the parents;
the geographical proximity of the parents’
homes; the extent and quality of the time
spent with the child prior to or subsequent to
16
the separation; the parents’ employment
responsibilities; and the age and number of
the children. A parent shall not be deemed
unfit unless the parents’ conduct has a
substantial adverse effect on the child.
[N.J.S.A. 9:2-4(c).]
When “the parents cannot agree to a custody arrangement,”
the court may require each parent to submit a custody plan for
its consideration. N.J.S.A. 9:2-4(e). When a court orders a
custody arrangement that is not agreed to by both parents, it
must identify on the record the specific factors that justify
the arrangement. N.J.S.A. 9:2-4(f).
A custody arrangement adopted by the trial court, whether
based on the parties’ agreement or imposed by the court, is
subject to modification based on a showing of changed
circumstances, with the court determining custody in accordance
with the best interests standard of N.J.S.A. 9:2-4.5 See Beck v.
Beck, 86 N.J. 480, 496 n.8 (1981) (noting that party seeking
change in custody arrangement must demonstrate “change of
circumstances warranting modification”); Mimkon v. Ford, 66 N.J.
426, 438 (1975) (holding that custody orders are “subject to
5 In the context of an application to modify support obligations
set forth in a settlement agreement, this Court has held that
obligations created by parties’ agreements entered into at the
time of a divorce may be modified by a court upon a showing of
changed circumstances, the same standard that governs
modification of judicial orders addressing those issues. Lepis
v. Lepis, 83 N.J. 139, 146 (1980).
17
modification at any time on showing of changed circumstances”);
Abouzahr v. Matera-Abouzahr, 361 N.J. Super. 135, 152 (App.
Div.) (“A party seeking modification of a judgment,
incorporating a [settlement agreement] regarding custody or
visitation, must meet the burden of showing changed
circumstances and that the agreement is now not in the best
interests of a child.”), certif. denied, 178 N.J. 34 (2003).
B.
The provision of the custody statute at the center of this
appeal is N.J.S.A. 9:2-2. It requires a showing of “cause”
before a court will authorize the permanent removal of a child
to another state without the consent of both parents or, if the
child is of “suitable age” to decide, the consent of the child.
Specifically, the statute provides:
When the Superior Court has jurisdiction over
the custody and maintenance of the minor
children of parents divorced, separated or
living separate, and such children are natives
of this State, or have resided five years
within its limits, they shall not be removed
out of its jurisdiction against their own
consent, if of suitable age to signify the
same, nor while under that age without the
consent of both parents, unless the court,
upon cause shown, shall otherwise order. The
court, upon application of any person [o]n
behalf of such minors, may require such
security and issue such writs and processes as
shall be deemed proper to effect the purposes
of this section.
[N.J.S.A. 9:2-2.]
18
The Legislature required a showing of “cause” for an out-
of-state relocation under N.J.S.A. 9:2-2 in order “to preserve
the rights of the noncustodial parent and the child to maintain
and develop their familial relationship.” Holder v. Polanski,
111 N.J. 344, 350 (1988) (quoting Cooper v. Cooper, 99 N.J. 42,
50 (1984)).
As this Court has observed, a court making the sensitive
determination of “cause” must weigh “the custodial parent’s
interest in freedom of movement as qualified by his or her
custodial obligation, the State’s interest in protecting the
best interests of the child, and the competing interests of the
noncustodial parent.” Ibid. (citing Cooper, supra, 99 N.J. at
56). When a parent of alternate residence objects to a proposal
by the parent of primary residence to relocate children out of
state, “there is a clash between the custodial parent’s interest
in self-determination and the noncustodial parent’s interest in
the companionship of the child.” Baures, supra, 167 N.J. at 97.
In the application of N.J.S.A. 9:2-2 to a relocation dispute,
“[t]here is rarely an easy answer or even an entirely
satisfactory one.” Ibid.
The Court discussed the showing necessary for a finding of
“cause” under N.J.S.A. 9:2-2 in two cases decided prior to
Baures. In Cooper, supra, the Court held that a custodial
parent seeking an order authorizing the relocation of children
19
must show “a real advantage to that parent in the move,” and
demonstrate that relocation would not be “inimical to the best
interests of the children.” 99 N.J. at 56. The Court modified
that test in Holder, supra, ruling that a custodial parent
demonstrates “cause” for purposes of N.J.S.A. 9:2-2 if he or she
presents a “good-faith reason” for the relocation and
demonstrates that it would not be “inimical to the best
interests of the children or adversely affect the visitation
rights of the noncustodial parent.” 111 N.J. at 353.
In Baures, supra, the Court substantially eased the burden
imposed on a custodial parent to demonstrate “cause” for a
relocation under N.J.S.A. 9:2-2. 167 N.J. at 116-20. Under the
standard prescribed in that case, a trial court’s threshold
determination is whether the objecting parent “shares physical
custody either de facto or de jure or exercises the bulk of
custodial responsibilities due to the incapacity of the
custodial parent or by formal or informal agreement.” Id. at
116. The Court held that in the shared-custody setting, the
trial court should treat the relocation application as a motion
for a change in custody “governed initially by a changed
circumstances inquiry and ultimately by a simple best interests
analysis.” Ibid.
The Court held that if the trial court’s threshold inquiry
reveals that the parent seeking removal is the custodial parent,
20
that parent would establish “cause” under N.J.S.A. 9:2-2 if he
or she proved “good faith and that the move will not be inimical
to the child’s interest.” Id. at 116. The Court set forth a
list of factors, “not all [of which] will be relevant and of
equal weight in every case,” to guide the determination of the
“good faith” and “not . . . inimical to the child’s interest”
prongs of its new test. Id. at 116-17.
In Baures, the Court displaced the burden, imposed under
Holder on the parent seeking relocation, to demonstrate that the
move would not adversely affect the visitation rights of the
noncustodial parent. Id. at 112 (citing Holder, supra, 111 N.J.
at 353). The Court held that a trial court should not deny a
motion for relocation merely because the modification would
reduce the objecting parent’s visitation but should bar
relocation only if the move would have an “adverse effect,”
defined as “a change in visitation that will not allow the
noncustodial parent to maintain his or her relationship with the
child.” Id. at 113.
The Court identified two developments in support of its
alteration of the governing standard for N.J.S.A. 9:2-2
relocation applications. Id. at 106-09. First, the Court
concluded that when a relocation benefits a “custodial parent,”
it will, as a general rule, similarly benefit the child. Id. at
106-08. The Court commented that “social science research links
21
a positive outcome for children of divorce with the welfare of
the primary custodian and the stability and happiness within
that newly formed post-divorce household,” and that such
research “has uniformly confirmed the simple principle that, in
general, what is good for the custodial parent is good for the
child.” Id. at 106. For that conclusion, the Court relied on
two studies: Judith S. Wallerstein & Tony J. Tanke, To Move or
Not to Move: Psychological and Legal Considerations in the
Relocation of Children Following Divorce, 30 Fam. L.Q. 305, 311-
12 (1996), and Marsha Kline et al., Children’s Adjustment in
Joint and Sole Physical Custody Families, 25 Developmental
Psychol. 430, 431 (1989) (co-authored by Wallerstein). Baures,
supra, 167 N.J. at 106. The Court also cited social science
research for the principle that, “[a]lthough confidence that he
or she is loved and supported by both parents is crucial to the
child’s well-being after a divorce, no particular visitation
configuration is necessary to foster that belief.” Id. at 107
(citing Frank F. Furstenberg, Jr. & Andrew J. Cherlin, Divided
Families: What Happens to Children When Parents Part 72
(1991)).
Second, the Court invoked “the growing trend in the law
easing restrictions on the custodial parent’s right to relocate
with the children and recognizing the identity of interest of
the custodial parent and child.” Baures, supra, 167 N.J. at
22
107-09 (discussing In re Marriage of Burgess, 913 P.2d 473, 481
(Cal. 1996); In re Marriage of Francis, 919 P.2d 776, 778, 779,
782, 784-85 (Colo. 1996) (en banc); Sefkow v. Sefkow, 427 N.W.2d
203, 214 (Minn. 1988) (en banc); Auge v. Auge, 334 N.W.2d 393,
399 (Minn. 1983) (en banc), superseded by statute, Minn. Stat. §
518.175; Tropea v. Tropea, 665 N.E.2d 145, 149-51 (N.Y. 1996);
Fortin v. Fortin, 500 N.W.2d 229, 233 (S.D. 1993); Taylor v.
Taylor, 849 S.W.2d 319, 332 (Tenn. 1993); Long v. Long, 381
N.W.2d 350, 352 (Wis. 1986)). In support of the custodial
parent’s “presumptive right” to move, the Court relied primarily
on the California Supreme Court’s decision in Burgess, in which
Wallerstein appeared as amicus curiae to present her research.
Id. at 108-09; Burgess, supra, 913 P.2d at 483 n.11. The Court
characterized this authority as representing a “shift in
relocation law” in favor of a custodial parent’s decision to
relocate out of state with his or her child. Ibid.
In the wake of Baures, trial courts routinely conduct a
threshold determination of whether the parties’ custody
arrangement assigns to one parent a primary role or involves
equally shared custody. See, e.g., Morgan v. Morgan, 205 N.J.
50, 66-67 (2011) (rejecting father’s contention that
notwithstanding terms of parties’ agreement, parties’ custody
arrangement was in effect shared custody for purposes of
threshold determination under Baures); Barblock v. Barblock, 383
23
N.J. Super. 114, 124-25 (App. Div. 2006) (rejecting father’s
claim that custody arrangement constituted shared custody due to
parents’ equal allocation of time with children); O’Connor,
supra, 349 N.J. Super. at 385 (affirming trial court’s
determination that despite terms of parties’ agreement, father
assumed most custodial responsibilities and arrangement was in
effect shared custody); Mamolen v. Mamolen, 346 N.J. Super. 493,
501-02 (App. Div. 2002) (reversing trial court’s determination
that custody arrangement amounted to shared custody based
primarily on children’s emotional relationship with father). By
virtue of the Baures standard, the parties’ custody arrangement
is the focus of the court’s initial inquiry.
Because the parties’ custodial arrangement is potentially
dispositive when a court determines whether to authorize
relocation under Baures, a collateral dispute regarding the
parties’ good faith in their custody negotiations may arise. In
Shea v. Shea, after the parent of primary residence sought an
order authorizing her to relocate the child out of state, the
parent of alternate residence accused her of “a subterfuge in
that she planned to seek removal [of the child from New Jersey]
shortly after the divorce was entered.” 384 N.J. Super. 266,
268-70 (Ch. Div. 2005). The parent of primary residence
“denie[d] any manipulative purpose.” Id. at 270. The court
held that when a request for relocation closely follows a
24
settlement and a final judgment of divorce, and the party
seeking to remove the child knew of “the material facts and
circumstances forming the good faith reason for the removal
request” when judgment was entered, the best interests standard
would apply, whether or not “the parties had a true shared
parenting arrangement.” Id. at 271. The court observed that
“[t]o rule otherwise could potentially encourage disingenuous
settlements, encourage a party to use the Baures line of cases
as a sword, or alternatively compel a cautious party to
exhaustively litigate custody when not truly necessary.” Ibid.
That principle was applied by the panel in this case, which
held that if a remand hearing revealed that plaintiff
manipulated the parties’ negotiations to gain an advantage in an
anticipated relocation dispute, “‘fundamental fairness’ requires
the trial court to apply the ‘best interests of the child’
standard rather than the Baures standard.” Bisbing, supra, 445
N.J. Super. at 217 (quoting Shea, supra, 384 N.J. Super. at 273-
74).
C.
In that setting, we consider whether to retain the Baures
standard as the benchmark for contested relocation
determinations decided pursuant to N.J.S.A. 9:2-2.
“[W]e do not lightly alter one of our rulings” because
consistent jurisprudence “provides stability and certainty to
25
the law.” Pinto v. Spectrum Chems. & Lab. Prods., 200 N.J. 580,
598 (2010). The principle of stare decisis “carries such
persuasive force that we have always required a departure from
precedent to be supported by some special justification.”
Luchejko v. City of Hoboken, 207 N.J. 191, 208 (2011) (quoting
State v. Brown, 190 N.J. 144, 157 (2007)). Such justification
might be found “when experience teaches that a rule of law has
not achieved its intended result.” Pinto, supra, 200 N.J. at
598; cf. Olds v. Donnelly, 150 N.J. 424, 440 (1997) (“Candor
compels that we acknowledge that the application of the entire
controversy doctrine to legal-malpractice claims has not
fulfilled our expectations.”).
We find such justification for a departure from precedent
in this case. In deciding Baures, the Court did not intend to
diverge from the best interests of the child standard at the
core of our custody statute, or to circumvent the legislative
policy that parents have equal rights “[i]n any proceeding
involving the custody of a minor child.” N.J.S.A. 9:2-4.
Instead, confronting a dispute that defies simple solutions, the
Court sought guidance in social science research as to the best
interests of the child, which at that time tethered the best
interests of the child to the custodial parent’s well-being.
Baures, supra, 167 N.J. at 97, 106-09. The Court also discerned
a trend in the law “significantly eas[ing] the burden on
26
custodial parents in removal cases.” Id. at 107 (collecting
cases). On those grounds, the Court replaced the best interests
of the child test in relocation applications brought by parents
with primary custody in favor of its two-pronged “good faith”
and “not . . . inimical to the child” test. Id. at 118.
Wallerstein’s social science research suggesting that the
primary custodian’s welfare is the paramount consideration has
been both supported and called into question in publications by
scholars in the field. See Richard A. Warshak, Social Science
and Children’s Best Interests in Relocation Cases: Burgess
Revisited, 34 Fam. L.Q. 83, 83, 109-10 (2000) (criticizing
amicus curiae brief submitted to California court by Wallerstein
in Burgess because seven of ten studies cited in brief were
authored by Wallerstein or other members of her research group
and because brief did not recognize limits of social science);
see also Sanford L. Braver, et al., Relocation of Children After
Divorce and Children’s Best Interests: New Evidence and Legal
Considerations, 17 J. Fam. Psychol. 206, 210 (2003) (“[C]ourts
ought to have better data than was available to the Burgess and
Baures tribunals on the question of the impact of parental moves
on the children of divorce.”); Carol S. Bruch, Sound Research or
Wishful Thinking in Child Custody Cases? Lessons from
Relocation Law, 40 Fam. L.Q. 281, 314 (2006) (concluding that
protecting child’s relationship with his or her primary
27
caregiver and that person’s decisions, including decision to
relocate, serves child’s best interests). Other research has
underscored the critical importance of a child’s close
relationship with his or her parent of alternate residence.
See, e.g., Paul R. Amato & Joan G. Gilbreth, Nonresident Fathers
and Children’s Well-Being: A Meta-Analysis, 61 J. Marriage &
Fam. 557, 559-65 (1999) (concluding that data from sixty-three
studies indicates that child’s “feelings of closeness” with and
“authoritative parenting” by his or her “nonresident father” are
associated with child’s academic achievement and well-being); K.
Alison Clarke-Stewart & Craig Hayward, Advantages of Father
Custody and Contact for the Psychological Well-Being of School-
Age Children, 17 J. Applied Developmental Psychol. 239, 260
(1996) (recounting study’s finding that “parentlike contact with
the noncustodial parent had the additional advantage of being
associated with better relations with both parents, which to
some extent was responsible for children’s better well-being”).
In short, social scientists who have studied the impact of
relocation on children following divorce have not reached a
consensus. Instead, the vigorous scholarly debate reveals that
relocation may affect children in many different ways.
The Court’s conclusion in Baures, supra, that in general, “what
is good for the custodial parent is good for the child” is no
doubt correct with regard to some families following a divorce.
28
167 N.J. at 106. As the social science literature reflects,
however, that statement is not universally true; a relocation
far away from a parent may have a significant adverse effect on
a child. See Braver, et al., supra, 17 J. Fam. Psychol. at 210
(“We find a preponderance of negative effects associated with
parental moves by mother or father, with or without the child,
as compared with divorced families in which neither parent moved
away.”); Christine Winquist Nord, et al., Fathers’ Involvement
in Their Children’s Schools, Nat’l Ctr. Educ. Statistics (Sept.
1997), https://nces.ed.gov/pubs98/fathers/ (reporting on
research demonstrating importance of active participation in
children’s school by “nonresident fathers”).
Moreover, the progression in the law toward recognition of
a parent of primary residence’s presumptive right to relocate
with children, anticipated by this Court in Baures, has not
materialized. See Baures, supra, 167 N.J. at 109 (identifying
“growing trend” in case law against restrictions on custodial
parent’s right to relocate with children and recognizing that
parent’s identity of interest with child). For instance, in In
re Marriage of Ciesluk, 113 P.3d 135, 137 (Colo. 2005) (en
banc), the Colorado Supreme Court repudiated the test it adopted
in Francis, supra, 919 P.2d at 784-85, in light of a legislative
enactment that eliminated the presumption in favor of the
majority time parent seeking to relocate. Francis, supra, 919
29
P.2d at 784-85, was a leading case on which this Court relied in
Baures, supra, 167 N.J. at 109. The Supreme Court of
California, whose opinion in Burgess was also relied on in
Baures, has revisited the standard of Burgess and a state
statute codifying Burgess, Cal. Fam. Code § 7501, and has
reaffirmed its earlier rejection of “bright line rules in this
area” in favor of an evaluation of each case “on its own unique
facts.” In re Marriage of LaMusga, 88 P.3d 81, 91 (Cal. 2004).
Today, the majority of states, either by statute or by case
law, impose a best interests test when considering a relocation
application filed by a parent with primary custody or custody
for the majority of the child’s time; some have recently
abandoned a presumption in favor of the parent of primary
residence.6 A minority of jurisdictions apply a standard that
6 Ariz. Rev. Stat. Ann. § 25-408(A),(G) (providing that if both
parents are entitled to joint legal-decision making or parenting
time, court shall determine whether to allow parent to relocate
child in accordance with child’s best interests); Conn. Gen.
Stat. § 46b-56d(a) (requiring that when relocation impacts
parenting plan, relocating parent must prove relocation is for
legitimate purpose, proposed location is reasonable, and
relocation is in best interests of child); 750 Ill. Comp. Stat.
5/609.2(b),(g) (providing that relocation by parent with
majority or equal parenting time requires court to modify
parenting plan or allocation in accordance with child’s best
interests); Ohio Rev. Code Ann. § 3109.051(G)(1) (providing that
if residential parent moves to residence not specified in
decree, court schedules hearing to determine whether it is in
best interest of child to revise parenting time schedule); 23
Pa. Cons. Stat. § 5337(h) (prescribing best interests of child
factors governing relocation decision); Utah Code Ann. § 30-3-
37(4) (requiring court to decide whether relocation of custodian
30
is in best interests of child); Chesser-Witmer v. Chesser, 117
P.3d 711, 717 (Alaska 2005) (holding that if out-of-state move
by custodian or joint custodian requires modification of custody
arrangement, modification must be in best interests of child);
Ciesluk, supra, 113 P.3d at 137 (recognizing legislative
elimination of presumption and applying best interests standard
under Colorado law); Fredman v. Fredman, 960 So. 2d 52, 55-56
(Fla. Dist. Ct. App.) (noting that legislature overruled court-
created presumption in favor of primary residential parent’s
relocation by enacting statute which provides that there is no
presumption in favor of or against request to relocate), review
denied, 968 So. 2d 556 (2007), cert. denied, 552 U.S. 1243, 128
S. Ct. 1481, 170 L. Ed. 2d 297 (2008); Bodne v. Bodne, 588
S.E.2d 728, 729 (Ga. 2003) (requiring courts to consider best
interests of child and overruling presumption that custodial
parent has prima facie right to retain custody); Fisher v.
Fisher, 137 P.3d 355, 365 (Haw. 2006) (rejecting argument for
“preference and priority” for “primary caretaker and stability
in residential and educational arrangements” in favor of best
interests standard); Bartosz v. Jones, 197 P.3d 310, 315 (Idaho
2008) (“When a move would violate an existing custody
arrangement, the parent seeking permission to relocate with the
child has the burden of proving that the relocation is in the
best interest of the child.”); In re Marriage of Whipp, 962 P.2d
1058, 1059 (Kan. 1998) (stating that for relocations that
materially change circumstances to justify change in custody,
court must determine whether change is in child’s best
interests); Gray v. Gray, 65 So. 3d 1247, 1255 (La. 2011)
(noting that La. Rev. Stat. § 9:355.1 to -.17 represents “policy
determination that . . . parent seeking to relocate the
principal residence of the child must prove not only that the
request for relocation is made in good faith, but also that the
relocation is in the best interest of the child”); Brasier v.
Preble, 82 A.3d 841, 844-45 (Me. 2013) (holding that relocation
that changes circumstances may require modification of custody
arrangement in accordance with child’s best interests); Braun v.
Headley, 750 A.2d 624, 636 (Md. Ct. Spec. App.) (applying best
interests of child standard to relocation that materially
changes circumstances), cert. denied, 755 A.2d 1139 (Md. 2000),
cert. denied, 531 U.S. 1191, 121 S. Ct. 1190, 149 L. Ed. 2d 106
(2001); In re Marriage of Goldman, 748 N.W.2d 279, 288 (Minn.
2008) (en banc) (Anderson, Paul H., J., dissenting) (noting that
legislature amended Minn. Stat. § 518.175 and replaced
“presumption in favor of the custodial parent” with best
interests of child standard); Pasternak v. Pasternak, 467 S.W.3d
264, 269 (Mo. 2015) (en banc) (holding that under Mo. Rev. Stat.
31
expressly or implicitly favors the relocation decision of the
parent with primary or majority-time custody; some but not all
of those jurisdictions characterize that preference as a
§ 452.377, change in principal residence requires court to
determine whether relocation is in good faith and best interests
of child); In re Marriage of Robison, 53 P.3d 1279, 1283 (Mont.
2002) (noting Montana legislature eliminated presumption in
favor of primary caretaker in its best-interests-of-child
statute, which applies to relocation determinations that warrant
change in parenting plan); Schrag v. Spear, 858 N.W.2d 865, 874
(Neb. 2015) (holding that custodial parent must demonstrate he
or she has legitimate reason for leaving state and that it is in
child’s best interests to continue living with him or her in new
location); Jaramillo v. Jaramillo, 823 P.2d 299, 307-09 (N.M.
1991) (rejecting use of presumptions and holding instead that
custody arrangement must be modified to serve best interests of
child if relocation changes circumstances); Tropea, supra, 665
N.E.2d at 150 (rejecting presumptions and holding that
relocation request must be considered in totality of
circumstances “with predominant emphasis . . . placed on what
outcome is most likely to serve the best interests of the
child”); In re Marriage of Colson, 51 P.3d 607, 612-14 (Or. Ct.
App. 2002) (noting that if move constitutes change of
circumstances, modification to custody arrangement still
requires showing that modification serves children’s best
interests); Valkoun v. Frizzle, 973 A.2d 566, 576-77 (R.I. 2009)
(stating that relocating custodial parent must prove legitimate,
not necessarily compelling, reason to move, and relocation is in
child’s best interests); Latimer v. Farmer, 602 S.E.2d 32, 34-35
(S.C. 2004) (adopting best interests standard instead of
previous presumption against relocation); Falanga v. Boylan, 123
A.3d 811, 814 (Vt. 2015) (stating that relocation that amounts
to changed circumstances necessitates reexamination of child’s
best interests); Wheeler v. Wheeler, 591 S.E.2d 698, 701 (Va.
Ct. App. 2004) (requiring material change in circumstances and
best interests of child to modify decree permitting custodial
parent to relocate); Arnott v. Arnott, 293 P.3d 440, 457-58
(Wyo. 2012) (overruling former presumption in favor of custodial
parent and holding that relocation that results in change of
circumstances warrants determination of proper custodial
arrangement that is in best interests of child).
32
“presumption.”7 As experience has proven, the standard adopted
in Baures did not represent a lasting trend in the law.
7 See 43 Okla. Stat. § 112.3(K) (relocating person must prove
relocation is in good faith and, if burden is met, then
nonrelocating person must show relocation is not in best
interest of child); Wis. Stat. § 767.481(3)(a)(2)(a) (“There is
a rebuttable presumption that continuing the current allocation
of decision making under a legal custody order or continuing the
child’s physical placement with the parent with whom the child
resides for the greater period of time is in the best interest
of the child.”); Singletary v. Singletary, 431 S.W.3d 234, 239-
40 (Ark. 2013) (recognizing presumption in favor of relocation
for parents with sole or primary custody and noting that guiding
principle in making relocation decision is best interests of
child); In re Marriage of Hoffman, 867 N.W.2d 26, 33 (Iowa 2015)
(conferring final authority on parent with physical care of
child to decide location of child’s residence but noting that
such authority “is not unlimited” and is “subject to judicial
review based on . . . best interests of the child[]”); In re
Heinrich & Curotto, 7 A.3d 1158, 1163 (N.H. 2010) (noting that
under New Hampshire relocation statute, relocating parent has
initial burden of demonstrating that relocation is for
legitimate purpose and is reasonable and burden then shifts to
opposing parent to prove relocation is not in child’s best
interests); Brosnan v. Brosnan, 840 N.W.2d 240, 247 (S.D. 2013)
(noting relocation statute provides that “parent entitled to the
custody of a child has the right to change his residence,
subject to the power of the circuit court to restrain a removal
which would prejudice the rights or welfare of the child”);
Aragon v. Aragon, 513 S.W.3d 447, 459-60 (Tenn. 2017)
(interpreting Tenn. Code Ann. § 36-6-108 to provide that parent
spending greater amount of time with child is permitted to
relocate with child unless court finds move does not have
reasonable purpose, move would pose threat of harm to child, or
motive for move is vindictive); In re Marriage of Horner, 93
P.3d 124, 130 (Wash. 2004) (noting that relocation statute
“establishes a rebuttable presumption that the relocation of the
child will be allowed” (quoting Osborne v. Osborne (in re
Osborne), 79 P.3d 465, 471 (Wash. Ct. App. 2003))); Storrie v.
Simmons, 693 S.E.2d 70, 76 (W. Va. 2010) (per curiam)
(authorizing relocation on showing that relocation that changes
circumstances is in good faith, for a legitimate purpose, and to
location that is reasonable in light of purpose).
33
Moreover, the threshold determination mandated by Baures
may engender unnecessary disputes between parents over the
designation of the parent of primary residence and accusations
that a parent sought that designation in bad faith, anticipating
a relocation. Our custody statute clearly envisions that a
custody arrangement will serve a paramount purpose: the
promotion of the child’s best interests. N.J.S.A. 9:2-4. The
parties and the court should select the parent of primary
residence based on that parent’s capacity to meet the needs of
the child. Ibid. If a designation as the parent of primary
residence will determine the result of a relocation dispute,
parties may be motivated to contest that designation even if one
parent is clearly in a better position to serve that primary
role. As this case illustrates, the advantage afforded to a
parent of primary residence in a relocation conflict may raise
divisive accusations of bad faith after custody negotiations
conclude. See Bisbing, supra, 445 N.J. Super. at 217; see also
Shea, supra, 384 N.J. Super. at 271-72. In short, 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.
Our decision to replace the Baures test with a best
interests analysis is consonant with our opinion in Emma v.
Evans, 215 N.J. 197, 216-23 (2013). In Emma, we addressed the
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standard applied when a parent seeks to change the child’s
surname, and the other parent objects to the renaming of the
child. Ibid. Prior to our opinion in Emma, courts applied a
rebuttable presumption that “in contested cases the surname
selected by the custodial parent -- the parent primarily charged
with making custodial decisions in the child’s best interest --
shall be presumed to be consistent with that child’s best
interests.” Gubernat v. Deremer, 140 N.J. 120, 123 (1995). In
Emma, supra, we abandoned that presumption in favor of a
standard based on the best interests of the child, with the
parents “on equal footing” in that inquiry. 215 N.J. at 221-22.
Accordingly, we do not consider the Baures standard to be
compelled by social science or grounded in legal authority
today, as the Court anticipated that it would be when it decided
that case. We recognize a “special justification” in this case
to abandon that standard. See Luchejko, supra, 207 N.J. at 208-
09; Pinto, supra, 200 N.J. at 598.
D.
In place of the Baures standard, courts should conduct a
best interests analysis to determine “cause” under N.J.S.A. 9:2-
2 in all contested relocation disputes in which the parents
share legal custody -- whether the custody arrangement
designates a parent of primary residence and a parent of
alternate residence, or provides for equally shared custody.
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That standard comports with our custody statute, in which the
Legislature unequivocally declared that the rights of parents
are to be equally respected in custody determinations and stated
that custody arrangements must serve the best interests of the
child. N.J.S.A. 9:2-4. A number of the statutory best
interests factors will be directly relevant in typical
relocation decisions and additional factors not set forth in the
statute may also be considered in a given case. Ibid.
In the best interests analysis, the parent of primary
residence may have important insights about the arrangement that
will most effectively serve the child. The parent of alternate
residence may similarly offer significant information about the
child. The views of other adults with close relationships with
the child may also inform the court’s decision. See Emma,
supra, 215 N.J. at 216-23 (holding that in best interests
analysis regarding child’s name, court should consider both
parents’ views and views of other adults close to child). The
trial court may consider other evidence, including documentary
evidence, interviews with the children at the court’s
discretion, and expert testimony. See R. 5:8-6 (“As part of the
custody hearing, the court may on its own motion or at the
request of a litigant conduct an in camera interview with the
child(ren).”); Pressler & Verniero, supra, comment 1.4.5 on R.
5:8-6 (stating that in custody hearings, “[i]t is clear that the
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parties must have an appropriate opportunity for experts’
assistance”); Kinsella v. Kinsella, 150 N.J. 276, 318 (1997)
(“In implementing the ‘best-interest-of-the child’ standard,
courts rely heavily on the expertise of psychologists and other
mental health professionals.”).
E.
We briefly address plaintiff’s contention, unsupported by
citation to federal or state authority, that the Appellate
Division’s application of N.J.S.A. 9:2-2 infringes on her due
process right to travel out of state.
We do not view N.J.S.A. 9:2-2’s constraints on a parent’s
authority to relocate children living in the state to a
different state, over the other parent’s objection, to infringe
on the relocating parent’s constitutional right to interstate
travel. The United States Supreme Court has defined the right
to travel as
the right of a citizen of one State to enter
and to leave another State, the right to be
treated as a welcome visitor rather than an
unfriendly alien when temporarily present in
the second State, and, for those travelers who
elect to become permanent residents, the right
to be treated like other citizens of that
State.
[Saenz v. Roe, 526 U.S. 489, 500, 119 S. Ct.
1518, 1525, 143 L. Ed. 2d 689, 702 (1999); see
also Mem’l Hosp. v. Maricopa County, 415 U.S.
250, 263, 94 S. Ct. 1076, 1085, 39 L. Ed. 2d
306, 318 (1974) (discussing right to travel).]
37
N.J.S.A. 9:2-2 does not infringe upon any of those rights.
The statute places no constraint 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.
As this Court noted in Holder, supra, in which we declined
to reach a parent’s constitutional challenge to N.J.S.A. 9:2-2,
“[s]hort of an adverse effect on the noncustodial parent’s
visitation rights or other aspects of a child’s best interests,
the custodial parent should enjoy the same freedom of movement
as the noncustodial parent.” 111 N.J. at 352 (collecting
cases). The Constitution, however, “does not prohibit a state
from imposing some legal consequences on a person’s entering or
leaving the jurisdiction.” Murnane v. Murnane, 229 N.J. Super.
520, 528 (App. Div. 1989) (citing Sosna v. Iowa, 419 U.S. 393,
95 S. Ct. 553, 42 L. Ed. 2d 532 (1975); Starns v. Malkerson, 326
F. Supp. 234 (D. Minn. 1970), aff’d, 401 U.S. 985, 91 S. Ct.
553, 42 L. Ed. 2d 527 (1971)). A court that has determined
“custody on the assumption of residence within New Jersey so as
to protect, among other things, the visitation rights of the
noncustodial parent and the interest of the child in maintaining
a close relationship with that parent” has the authority to
constrain a parent from altering custody without violating that
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parent’s due process right to travel. Ibid.; see also Holder,
supra, 111 N.J. at 352.
Any limitation on plaintiff’s travel imposed by the trial
court pursuant to N.J.S.A. 9:2-2 would relate solely to her
intention to move her children to Utah, a departure from the
custody arrangement that the parties agreed upon and the court
ordered. Such a limitation would not violate plaintiff’s due
process right to interstate travel. Murnane, supra, 229 N.J.
Super. at 528.
V.
Our holding compels a remand of this matter to the trial
court for a plenary hearing to determine whether the custody
arrangement set forth in the parties’ Agreement should be
modified to permit the relocation of the parties’ daughters to
Utah.
We do not agree with defendant’s assertion that by
consenting to the interstate relocation provision of the
parties’ Agreement, plaintiff waived her right to a judicial
determination of her relocation application under N.J.S.A. 9:2-
2. That Agreement, however, is significant to the court’s
determination on remand. Because the custody arrangement was
agreed to and incorporated in the trial court’s judgment,
plaintiff is required to demonstrate changed circumstances to
39
justify its modification. Quinn v. Quinn, 225 N.J. 34, 48-49
(2016); Lepis, supra, 83 N.J. at 147.
In addition, because the modification of custody sought by
plaintiff is a permanent relocation governed by N.J.S.A. 9:2-2,
plaintiff must demonstrate that there is “cause” for an order
authorizing such relocation. In that inquiry, “cause” should be
determined by a best interests analysis in which the court will
consider all relevant factors set forth in N.J.S.A. 9:2-4(c),
supplemented by other factors as appropriate. On remand, the
court should consider, under that analysis, the parties’
Agreement, in which the parties acknowledged that they equally
provide their daughters’ “quality of life and style of life,”
and “acknowledge[d] a direct causal connection between the
frequency and duration” of their children’s contact with both
parents, and “the quality of the relationship” between the
children and each parent. The trial court should also consider
other evidence presented by the parties.
Because the best interests standard applies to the
determination of “cause” under N.J.S.A. 9:2-2 notwithstanding
plaintiff’s designation as the parent of primary residence, the
question whether plaintiff anticipated a relocation when she
negotiated for that designation does not determine the governing
standard. In the remand hearing, the court need not decide
40
whether plaintiff negotiated the parties’ Agreement in bad
faith.
VI.
The judgment of the Appellate Division is modified and
affirmed, and the matter is remanded to the trial court for
proceedings in accordance with this opinion.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE PATTERSON’s
opinion.
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