I’m going to briefly discuss the issue of relocation of custody and a recent case that was decided in the appellate division, Bisbing v. Bisbing.
Please note: as with all my blogs and videos, I discuss the law at the date that I’m discussing it, where you could be reading this months or years later and the law may change. Relocation, as well as any other law, is always subject to change.
Relocation is a very sensitive issue, so it’s important to have a good understanding of the issue if you’re gonna be facing it on either side, whether you’re moving or if you’re the parent who may be losing custody.
Standards for Relocation
There are two different standards that are utilized when a parent is looking to relocate. The most common one is on a case that I’ll just simply refer to as Bowers. Bowers sets forth 12 different criteria that’s supposed to be established in order to permit a relocation. Those are essentially boiled down to the courts trying to determine if the move:
- Is proposed in good faith,
- Is in the child’s best interest, and
- Is not going to harm the child in any way.
Now, that’s for your customary or traditional type of parenting time, where one parent, the parent who is relocating, has primary physical custody. If you’re sharing physical custody, and that doesn’t necessarily mean by time, but time and/or responsibility, there is a different standard, and that’s usually more of the best interest of the child standard.
Bisbing v. Bisbing
Now, the reason why the Bisbing case is important to discuss now is because a lot of people are starting to construe that case as if it’s changing the focus of the Bowers and relocation test, and I don’t think that it is.
First, by way of background, Bisbing v. Bisbing was originally a trial court level case, which is where all cases start. The change comes from the appellate division, which is the higher level. When you have a normal case or you’re involved in litigation, you will be at what’s called the trial level, and when it’s taken to review by a higher court, it’s the appellate division.
So, ironically, I actually represented the father in Bisbing when the case was at the trial court level, and they had recently been divorced for a short period of time. Mom had custody, but it was an equal shared relationship, where my client, the father, was equally involved in the children’s lives. What was unique to this case was they had a settlement agreement that specified many things about parenting time that were unique and they indicated that children are best served by being equally with both parents. There was a provision that actually limited relocation because it would be harmful to remove the children from their relationship with either parent.
There’s also an underlying law that exists in New Jersey at this time, that suggests that if custody is resolved by way of a divorce agreement. Within this underlying law, if another parent seeks to relocate within the one year following the divorce agreement, the court may presume that it’s being done in bad faith because it could or should have been known at the time of the divorce, and had the other parent known that intention, they might have changed parenting time. The court views it that the parent who is planning to move withheld the information so they could get an advantageous custody arrangement.
That was part of what’s underlying because in Bisbing, the mother was seeking to relocate within the year from the time this agreement was entered, and the agreement, as I mentioned, had these very specific terms indicating harm to the children if there’s going to be relocation. We took it to the trial court to prevent the relocation, the judge denied our request and granted the relocation in probably what was one of the worst decisions I’ve ever seen by a trial court. Fortunately, when my client took it to the appellate division, they agreed with us and reversed it and sent it back.
Interpreting Bisbing v. Bisbing
Now, the important thing about this case is the decision is being interpreted by some lawyers and judges who say that they believe Bisbing is changing the standard to be more of a best interest on the child analysis, and not so much of the Bowers 12 Factors. I disagree. I’ve re-read the case on the appellate level several times. I think what’s important about that case in the appellate division is the underlying facts on the Bisbing settlement agreement that are unique to most settlement agreements about custody. The fact that they had an equal share parenting time arrangement, yet the relocation was done within the year, which could be presumed to be done in bad faith.
I think all of these factors that were present in this case greatly affected the decision of Bisbing. I don’t read Bisbing as changing the analysis under Bowers or the best interest standard if you’re sharing physical time. Now, Bisbing is a new case, so it’s effect hasn’t been implemented entirely and there’s been no challenges to the law. I think there are going to be some future interpretations regarding this.
Now, what is important to note is whether I’m right or wrong about the effect of Bisbing, the case itself is promoting a lot of people to talk and look at relocation differently. I think that alone is going to possibly change people’s views about the rigidness or the appropriateness of relocation, and I think there’s a greater recognition of the other parent’s involvement and loss of a child’s relationship by being forced to relocate. I think that the tide may be changing, and I think the courts are going to start looking more rigidly at relocation and denying them if there’s really not a great interest that’s served for the children.