August 18, 2017 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization
The New Jersey Supreme Court has struck a blow for kids, families and common sense (NJ.com, 8/10/17). In the case of Bisbing v. Bisbing, the Court ruled that, when a parent with primary custody wants to relocate with the children, she may only do so if she proves that relocation is in the children’s best interests.
Given the current state of the law on child custody, that should have been nothing but the obvious, but in the Garden State, it wasn’t. Before the Bisbing case, non-custodial parents had the burden of proving that the moveaway wasn’t in the child’s best interests. The high court placed the burden of proof where it should have been all along – on the moving party.
Plus, it correctly established the issue to be decided in all such cases – the child’s best interest. As the attorney for the father in Bisbing, Matheu B. Nunn, accurately said,
"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.”
Obviously, given that children’s best interests supposedly govern all decisions in custody or parenting time cases, it was certainly anomalous, and probably a violation of law, to place the burden on the non-moving parent to show that the move was antithetical to the child’s interests.
Apparently, New Jersey family lawyers have anticipated the change for some time.
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.
I find it odd that Millner calls it “unfortunate” that social science demonstrates that continuous contact with both parents is best for kids. Still, I’m glad she acknowledges the state of the science and its demand that kids maintain meaningful relationships with both parents post-divorce.
In Bisbing, the mother had primary custody and made a motion to the court to relocate from New Jersey to Utah. The father resisted, the trial court allowed the move but was reversed by the appellate court, whereupon it landed in the state’s highest court.
Australian researcher Patrick Parkinson has done the best research on relocation cases to date. He presented his findings at the Shared Parenting Conference hosted by the National Parents Organization this past May.
According to that research, it is essentially invariable that the parent seeking to relocate is the mother. That was true of 39 of the 40 cases he studied. In two-thirds of the cases, the relocation request was allowed by the court, but typically, Dad unwillingly acquiesced to the motion because he knew he was going to lose. That fact alone argues persuasively for what the New Jersey court did. Placing the burden of proof on the moving party to demonstrate that moving, and therefore severing real contact with Dad, is in the child’s best interests would almost certainly hugely reduce fathers’ chances of losing.
Interestingly, of the 15 mothers in Parkinson’s study who weren’t allowed to move away, most of them accepted the situation and got on with their lives with a relatively positive attitude. And, five years after the fact, eight of those 15 mothers said that it was better for the kids that they hadn’t been allowed to move. That was because the children were able to maintain real relationships with their fathers, and those mothers realized belatedly that that was best for them.
In eight of the 24 cases in which the mother was allowed to move away, the fathers moved too in order to maintain real contact with their children. But often, even when Dad moved too, Mom blocked his contact with his children. And when Dad didn’t move, the monumental cost in money and time of trying to see his children regularly effectively blocked his ability to do so. And of course the burden on the children of travelling, often great distances by air, to see Dad every other week was, particularly in the case of young children, almost unbearable.
In short, requests to relocate should be presumed against. They’re simply too hard on the children and the parent who would be left behind. That presumption is exactly what happened in the Bisbing case and all future New Jersey cases will have to meet the standard articulated there. Good for the state’s Supreme Court.
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