Nima Ashtyani
January 1, 2018

Can I move my kids out of state after my divorce? In Bisbing v. Bisbing the New Jersey Supreme Court recently provided guidance for the resolution to this question.

The scenario:

Husband and Wife have twin ten-year-old girls.  Husband and Wife decide to get divorced.  Prior to the divorce, Wife starts dating a new man.  In March 2014, Husband and Wife negotiate a Marital Settlement Agreement and are divorced by April 2014.  In that agreement, Husband and Wife agree to three relevant facts: 1) Husband and Wife agree to share legal custody of the girls; 2) Wife is named the “parent of primary residence”; and 3) neither Husband nor Wife can move out of state with the girls unless the other agrees.

Nine months later, Wife tells Husband that she is moving out of state with the girls to live with her boyfriend in Utah.  Husband objects.

So, who wins?  Can Wife leave with the kids to Utah or can the Husband demand that the kids stay in New Jersey?

In Bisbing, the Court first acknowledged that the parties had a negotiated settlement agreement directly on point – no one can permanently leave the state with the girls without the consent of the other party.  Therefore, unless Wife could prove that “changed circumstances” existed to warrant modification of the agreement, she is out of luck. (seeQuinn v. Quinn and Lepis v. Lepis)

If, however, circumstances had changed, the Wife would still be obligated to show that the move would be in the best interest of the children.

Prior to this case relocation was appropriate so long as the move was in good faith and was not contrary to the best interest of the child. Every other custody question in New Jersey simply asks whether or not a change is in the best interest of the child.  Bisbing brings relocation law under that umbrella.

In summary, 1) if you have an agreement regarding relocation, you have to follow it unless there are changed circumstances; and 2) if there are changed circumstances or there is no agreement, you cannot relocate the child unless it is in the best interest of the child.

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