Jaime Taormina Bisbing v. Glenn R. Bisbing, III (077533) (Sussex County and Statewide)
166 A.3d 1155
| N.J. | 2017Background
- Parties divorced after mediation; their Marital Settlement Agreement (incorporated into the judgment) granted Jaime Taormina Bisbing primary residential custody and required written consent to any permanent out-of-state relocation of the children.
- After the divorce, Bisbing planned to marry and move to Utah; she asked Glenn Bisbing for consent to relocate the twin daughters and he refused, asserting the children must remain in New Jersey.
- Plaintiff moved for an order under N.J.S.A. 9:2-2 authorizing relocation; the trial court, applying Baures v. Lewis, found Bisbing acted in good faith and the move was not inimical to the children’s interests and authorized relocation.
- The Appellate Division reversed and remanded for a plenary hearing, finding a triable issue whether plaintiff negotiated the custody terms in bad faith; if bad faith were proven, the court should apply a best-interests-of-the-child standard instead of the Baures test.
- The Supreme Court granted certification, concluded Baures should be abandoned for cases where parents share legal custody, and remanded for a plenary best-interests hearing under N.J.S.A. 9:2-4 factors; because the best-interests standard now governs, the court need not resolve the alleged bad-faith negotiation issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standard for proving “cause” under N.J.S.A. 9:2-2 for permanent out-of-state relocation when parents share legal custody | Apply Baures: custodial parent need only show good faith and that the move is not inimical to the child | Enforce Agreement and/or apply best-interests if plaintiff negotiated custody in bad faith | Abandon Baures in shared-legal-custody cases; apply best-interests analysis (N.J.S.A. 9:2-4 factors) to determine “cause” |
| Effect of an agreed custody provision limiting relocation | Agreement is significant; plaintiff may still seek judicial relief under N.J.S.A. 9:2-2 | Agreement should control; waiver of relocation claim | Agreement requires plaintiff to show changed circumstances to modify it; but she retains right to judicial determination under N.J.S.A. 9:2-2; court will consider the Agreement as part of best-interests analysis |
| Whether alleged bad-faith negotiation of custody should change governing standard | Plaintiff: bad-faith allegation should not automatically change the Baures standard | Defendant: bad faith should trigger application of best-interests standard | Court: because best-interests now governs in shared-legal-custody disputes, court need not resolve bad-faith claim to determine “cause” |
| Constitutional challenge (right to interstate travel) | Relocation restriction infringes right to travel | N.J.S.A. 9:2-2 regulates custody, not free movement; state may protect child and nonmoving parent’s rights | Statute does not violate right to travel; it regulates relocation of children to protect child’s interests and other parent’s rights |
Key Cases Cited
- Baures v. Lewis, 167 N.J. 91 (N.J. 2001) (formerly governed relocation by custodial parent via a good-faith + “not inimical” test)
- Cooper v. Cooper, 99 N.J. 42 (N.J. 1985) (early test: custodial parent must show a real advantage and no harm to child’s best interests)
- Holder v. Polanski, 111 N.J. 344 (N.J. 1988) (articulated good-faith + non-inimical approach antecedent to Baures)
- Emma v. Evans, 215 N.J. 197 (N.J. 2013) (abandoned surname-presumption; emphasized best-interests and equal footing of parents)
- In re Marriage of Burgess, 913 P.2d 473 (Cal. 1996) (California decision influential in Baures supporting custodial parent’s relocation preference)