In a landmark decision, the New Jersey Supreme Court reversed nearly two decades of law in a landmark decision on Tuesday by setting a new standard when it comes to the relocation of children in child custody cases. In Bisbing v Bisbing, released on August 8, 2017, that court overturned the law that required New Jersey courts to consider certain factors--factors with little emphasis on the child(ren)'s best interests--when deciding whether to permit a custodial parent to relocate children from New Jersey to another state--often far away. The New Jersey law was one that Michigan adopted long ago, and later codified in Michigan Laws at MCL 722.31. Interestingly, the Bisbing court held that relocations should focus on the best interests of the child(ren). Will Michigan follow this growing trend?
The Bisbing relocation dispute began in 2015 case. The Bisbing Supreme Court held that divorced parents who want to leave New Jersey against the other parent's wishes must prove that the move is in the child's best interests, keeping the focus on the child. Previously, the child's interests were considered, but the focus was on whether the move would "cause harm" to the child, according to the ruling.
"It is my sincere hope that our lower courts will apply this decision in a way that recognizes that Skype, FaceTime, and text messaging cannot replace the father who coaches his child's soccer team after work, or the mother who gets up for work two hours earlier than she needs to so she can participate in her child's 6 a.m. hockey practice," said Nunn, a partner at Einhorn Harris in Denville.
Jennifer Weisberg Millner, an attorney who has also taken a child relocation case to the state Supreme Court, said the decision on Tuesday was a landmark. "Quite frankly, this is the decision that many, many family lawyers have been waiting for for years," she said.
Under the old standard, Millner said, there was a presumption children were happiest when the custodial parents were the happiest.
"Unfortunately, in the intervening years, the social science just didn't bear that out," she said. "Instead, it's been shown a child and children need that continuous contact with both parents."
New Jersey now joins the majority of states to utilize a "best interests" test in terms of child relocation.
Kevin Kelly, a family law professor with Seton Hall Law School, however, said he thought the decision would have "some significance" but wasn't "revolutionary."
"I don't think it's landmark or revolutionary, but I think it's sensible," he said.
Kelly, who has taught the Family Law Clinic at the law school for 20 years, said the new standard would place the burden of proof on the parent looking to relocate.
"I think it reflects a trend we've been seeing in New Jersey that the rights of both parents are respected and that neither are left out," he said.
Kelly, who has represented women seeking to escape abusive relationships with their children, said he hoped the ruling wouldn't have "a chilling effect on parents seeking to escape domestic abuse."
The case began in 2015 when Jamie Taormina Bisbing, who has primary custody of her twin daughters, sought to move her girls out of New Jersey a year after divorcing her husband, Glenn Bisbing, in order to marry a Utah resident she began dating before her divorce.
As part of the divorce settlement, a relocation stipulation was included requiring the written consent of the other parent before moving. Glenn Bisbing said his ex-wife was free to move to Utah but argued his daughters should stay. He also alleged she'd negotiated the agreement in bad faith.
The trial court at the time didn't hold a hearing on the matter, instead applied the standard set in Baures v. Lewis in 2001, in which a parent seeking to relocate children out of state over the objection of another parent must demonstrate only that there is a good-faith reason for the move and that it won't hurt the child's interests.
After that ruling, the girls' mother moved with them to Utah and enrolled them in an elementary school.
The appellate court later reversed the ruling and ordered a hearing, requiring the lower court to apply "the best interests of the child standard if plaintiff failed to prove a substantial and unanticipated change."After that decision, the girls and their mother returned to New Jersey, where the trial court denied her motion for a stay and ordered the girls' parents to abide by the terms of the divorce agreement. The Bisbing decision may be read here: Download Bisbing_v._Bisbing_(N.J. _2017)
Although the court focused on the divorce agreement, Nunn said the importance of the ruling is the change in the standard for considering moving a child out of state.
"The underlying issue resolved by this case - one at the center of all relocation cases - is why a 'best interests' standard would be used for all custody determinations other than one that separates parents from their children by hundreds or thousands of miles," Nunn said.
Thus, the question now may become, how long will it be before Michigan adopts new standards? This topic was addressed by me, with co-speaker Phil Stahl, PhD, at a 2014 American Bar Association Conference. You may download and read my written submission here. Download RELOCATIONS-ABA Family Law 2014 Spring Conference
Experts such as Linda Elrod, the Richard S. Righter Distinguished Professor of Law and Director of the Washburn University School of Law Children and Family Law Center and a Fulbright Senior Specialist at the Dublin Institute of Technology in 2011, note that family courts are becoming more child-centered when making decisions about whether a parent may relocate with a child or children when a relationship or marriage is dissolved. Professor Elrod has written extensively on this topic, urging that the best interests of the child(ren) become the focus of the court's determination. See this Google search: Linda Elrod and relocation