United States: Appellate Division Addresses Non-Relocation Agreement In New Published Decision

Last Updated: April 10 2016
Article by Robert A. Epstein

In many custody disputes, a primary area of concern is one parent's ability to relocate with the children after the divorce is over. Relocation requests have been characterized as often resulting in "heart-wrenching" decisions. As we have previously discussed on this blog, the legal standard to be applied to a parent's interstate removal application differs if the parent is the primary caretaker as compared to an equal/"shared" physical and legal custodian with the other parent. The two standards are briefly explained below:

Equal/"Shared" custodial parents: If the parents "truly share both physical and legal custody," then the moving parent must prove that the best interests of the children would be better served by residential custody being primarily vested with the relocating parent.

One primary custodial parent: On the other hand, if one parent is the primary caretaker, that parent's request to relocate with the children is governed by the two-prong Baures test – specifically, the moving party has to prove by a preponderance of the evidence that (1) there is a good faith reason for the move; and (2) the move will not be inimical to the children's interests. The Baures test is analyzed in the context of twelve (12) factors set forth in that case, and is more favorable to the primary custodian seeking relocation. In fact, it is this favorable standard that often sees non-custodial parents claiming "de facto" equal custodial status in response to a primary custodian's relocation motion so as to convince the trial judge to utilize the best interests standard. As an aside, there exists pending legislation that would alter this favorable legal standard.

What happens, then, if there exists a so-called non-relocation agreement and a primary custodian seeks to relocate interstate? The Appellate Division was faced with that issue in the newly published (precedential) decision of Taormina Bisbing v. Bisbing. Here are the facts that you need to know:

  • The parties were married in 2005 and the children were married in 2006. Both parties were highly-paid professional employees, with wife earning more than husband.
  • In early 2013, husband investigated job opportunities in Colorado and California. The parties separated in August, 2013 and, in November, wife began a long distance relationship with a Utah resident who had children from a prior marriage. The Utah resident owned a business in Idaho and had business interests requiring him to frequently travel to California and Louisiana.
  • On March 8, 2014, the parties entered into a marital settlement agreement wherein they agreed to joint legal custody, and that wife would have primary residential custody under the condition that she would not relocate outside of New Jersey. The MSA also provided that dad would have "broad, reasonable and liberal timesharing" of the children – Father's Day, his birthday, every other weekend and on one weeknight during the weeks when he did not have parenting time, every other Thanksgiving, Christmas Eve, Christmas Day, New Year's Eve, New Year's Day, and school breaks. Each parent was entitled to attend all sporting events and activities regardless of which parent was scheduled to have parenting time.
  • As to relocation, the agreement provided:

    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 outside 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 any 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.
  • On April 16, 2014, a final judgment was entered that incorporated the terms of the settlement agreement. Husband represented that, after the divorce, he was very involved in the children's lives, coached their teams, took them to activities, and attended school events.
  • One month after the divorce, wife sent an email to husband telling him that, although she received no alimony, she was planning to leave her job on July 1, 2014 to be a full-time stay-at-home parent, which she did.
  • On January 8, 2015, wife called husband to tell him of her intention to get married to the Utah resident and relocate to Utah. Wife asked for husband's permission to relocate with the children. Husband refused, indicating that she could move and leave the children with him.
  • On March 16, 2015, wife filed a motion to relocate with the children to Utah without the need for a plenary hearing. The court granted the motion – without a hearing – so long as a visitation schedule could be established through mediation.
  • On July 14, 2015, after unsuccessful mediation, with only wife suggesting a parenting plan, the court issued a supplemental order establishing a parenting time and communication schedule using most of wife's suggestions. Eleven days later, wife and the children "left for a vacation to Utah." Three days thereafter, she permanently relocated with the children in Utah.

In reversing and remanding for a plenary hearing, the court found:

  1. The best interests of the child standard should be applied if wife was found to have negotiated the settlement agreement in bad faith.
  2. If no bad faith finding is made, the court is to consider whether wife proved a substantial unanticipated change in circumstances "warranting avoidance of the agreed-upon non-relocation provision and simultaneously necessitating a Baures analysis."
  3. If the settlement agreement was deemed to have been negotiated in good faith, but wife fails to prove a substantial unanticipated change in circumstances, the court is to apply the above-referenced best interests of the child standard.
  4. In other words, wife could only receive the "benefit" of the Baures standard if wife was found to have negotiated in good faith and proved a substantial unanticipated change in circumstances.

Under such guidance, the Court distinguished from the notable prior trial court decision of Shea v. Shea,wherein the father accused the mother of of manipulating the Baures procedure by settling the divorce, and immediately thereafter filing for removal so as to reply upon the more favorable burden of proof. Here, the Court critically found that husband was entitled to a hearing to prove whether wife manipulated the situation to obtain "favorable Baures removal procedures" that:

  1. When wife entered into the agreement, she may not have definitely known of the "material facts and circumstances forming the good faith reason for the removal request" (i.e., moving to Utah to marry her boyfriend).
  2. The non-relocation provision did not exist in the earlier matter.

In so holding, the court found:

Similar to the situation in Shea, the close proximity between the parties' agreement and [wife's] plans to relocate provides evidence of suspicious circumstances requiring a plenary hearing. If, after holding a hearing, the family court finds that [wife] negotiated in bad faith, it should then analyze the relocation request under a "best interests" analysis.

The non-relocation was to be considered even if wife is found to have negotiated in good faith, "without manipulative intent" premised on New Jersey's strong public policy favoring agreements that resolve marital disputes. In damning tone, the Court found:

Thus, [wife], in a written and voluntarily agreed-upon contract, specifically surrendered her "freedom to seek a better life" in another state while obtaining primary custody of the children, and was well aware of that agreement when she chose to remarry and move far away.

While the relocation language of the agreement considered new employment as a basis for moving, it did not mention remarriage, thereby leading the Court to suggest that testimony would reveal whether remarriage was a considered eventuality at the time of the agreement and, thus, not an unanticipated substantial change in circumstance. The Court also noted that, if the Baures standard was to ultimately apply, the trial judge would be charged with analyzing the effect on the children of moving away from both parents' extended families.

When I first read the facts, I was saddened, but not at all shocked at what seemed to be a clear manipulation of the prevailing legal standards discussed above. I have been involved in many cases on both sides of the relocation argument, and have seen the devastation that can result. A difficult situation becomes all the more tragic when it is clear that one party is not proceeding in good faith. What wife seemingly did here is just as bad as the non-custodial parent who claims de facto equal custodial status just to have the best interests standard applied. It is for these reasons, in part, why the pending legislation mentioned above makes sense in some form – to remove this sort of gamesmanship from the equation when children are involved and the relationships with one or both of their parents is potentially at stake. The Appellate Division certainly got it right here with a just result.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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