In a much anticipated decision issued on August 8, 2017, the Supreme Court of New Jersey in Bisbing v. Bisbing overturned the well-established standard applied by courts in determining whether a primary custodian should be permitted to relocate out-of-state with a minor child. The Bisbing Court abandoned the two-prong test for relocation which the Court developed in the 2001 case of Baures v. Lewis in favor of a “best interests of the child” standard.

Pursuant to N.J.S.A. 9:2-2, a showing of “cause” is required before a court will permit the relocation of a minor child to another state without the consent of both parents. In determining cause, the pre-Bisbing law distinguished between relocation applications made by a party with shared custody versus a party with primary custody. An application to relocate out-of-state was viewed under the “best interests” standard only if the parties had a shared custody arrangement. Under Baures, a more lenient standard was applied in cases where the party seeking to relocate had primary custody, requiring the moving party to meet a two-prong burden of proof, demonstrating: (1) There is a good faith reason for the move; and (2) The move is not inimical to the child’s best interest. Essentially, Baures eased the burden for primary custodial parents seeking to relocate with a minor child. Enter Bisbing.

In overturning the Baures standard, the Supreme Court in Bisbing candidly acknowledges its reluctance to overrule itself but cites a “special justification” requiring implementation of a “best interests” analysis across the board in all relocation cases, regardless of whether the party seeking to relocate has primary or shared custody. In explaining its decision in Bisbing, the Supreme Court noted essentially that the rationale underlying Baures was no longer applicable. Specifically, the Bisbing Court addressed the following reasoning of the Baures Court:

(1) The Baures Court relied upon social science research which linked the best interests of the child to the custodial parent’s wellbeing. The theory was that, in general, whatever is good for the custodial parent is good for the child. The Bisbing Court rejects this, noting: “[S]ocial 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.”

(2) The Baures Court cited a growing trend in the law “significantly easing” the burden on custodial parents in removal cases. In other words, the Baures Court cited what it believed to be an emerging trend by New Jersey Courts to decide relocation cases in favor of the primary custodial parent. Bisbing rejects this as well, stating: “[T]he progression in the law toward recognition of a parent of primary residence’s presumptive right to relocate with children…has not materialized.” According to Bisping, what appeared to be a trend in the law at the time Baures was decided in 2001 never actually developed.

The New Jersey Supreme Court’s landmark decision in Bisbing marks a major departure from the relocation standard which had been in place for 16 years since Baures was decided in 2001. Whether this significant change in the law will serve to reduce or increase disputes over relocation of a minor child remains to be seen. What is clear, however, is that Bisbing brings uniformity to contested relocation cases, applying a best interests standard in all such cases regardless of the nature of the custodial arrangement.


Thomas A. Roberto focuses his practice on all aspects of matrimonial law, including but not limited to issues of custody, parenting time, child support, alimony and spousal support, equitable distribution, domestic violence, and prenuptial agreements. His practice is located in Obermayer’s Cherry Hill office. He can be reached at 856-857-1421 or at Thomas.Roberto@obermayer.com.