Moving Out of New Jersey With Your Child: Relocation After Bisbing v. Bisbing

Quick answer: Moving out of New Jersey with your child, when the other parent does not agree, requires a court order first. Under N.J.S.A. 9:2-2, a child covered by the statute cannot be removed from New Jersey without the consent of both parents unless the court, “upon cause shown,” orders otherwise. Since the New Jersey Supreme Court decided Bisbing v. Bisbing, 230 N.J. 309 (2017), judges decide whether there is cause by asking what is in the child’s best interests, using the custody factors in N.J.S.A. 9:2-4. The parent who wants to move carries the burden of proof.

This article is general information about New Jersey relocation law, not legal advice. Every family’s facts are different and the law can change, so get advice before you make plans you cannot undo.

What does New Jersey law say about moving a child out of state?

N.J.S.A. 9:2-2 applies when the Superior Court has jurisdiction over the custody of children whose parents are divorced, separated or living apart, and the children were born in New Jersey or have lived here five years. Those children “shall not be removed out of its jurisdiction” without the consent of both parents, unless the court orders it for cause.

The statute also recognizes the child’s own consent “if of suitable age to signify the same.” Courts have explained that the Legislature required cause to “preserve the rights of the noncustodial parent and the child to maintain and develop their familial relationship.” That leaves two lawful routes: a real agreement between the parents, or a court order.

Do I need the other parent’s consent or a court order before I move?

Yes, one or the other, and before the move. In Dever v. Howell (2018), the Appellate Division held that when the other parent objects, N.J.S.A. 9:2-2 requires the parent who wants to relocate to get a court order first. Asking the court to approve the move after it has already happened does not satisfy the statute.

In that case, a father gave the mother less than a day’s notice and moved the children to another state over her objection. The trial judge ordered the children returned, and the Appellate Division affirmed, holding that the parent seeking removal “has the ultimate burden of proof by the preponderance of the evidence.”

Consent should be specific. The parents in Dever had a consent order allowing a move to one state, and it did not authorize a move to a different one. Put any agreement in writing, name the destination, include a new parenting time schedule, and ask the court to enter it as a consent order.

What did Bisbing v. Bisbing change?

Bisbing replaced the standard from Baures v. Lewis (2001). Under Baures, a parent with primary custody had to show only a good-faith reason for the move and that it would not be “inimical to the child’s interests.” Bisbing requires a best-interests analysis “in all contested relocation disputes in which the parents share legal custody.”

The Court found that social scientists “have not reached a consensus” on how relocation affects children, and that “a relocation far away from a parent may have a significant adverse effect on a child.” The Supreme Court has since described Baures as overruled by Bisbing.

Question	Under Baures v. Lewis (2001)	Under Bisbing v. Bisbing (2017)
Whose request it covered	A parent with primary custody moving over the other parent’s objection	Any contested move where the parents share legal custody, including equal custody
Test for “cause”	A good-faith reason, and the move “will not be inimical to the child’s interests”	The best interests of the child
Factors	Twelve Baures factors, such as the reasons for and against the move	The N.J.S.A. 9:2-4(c) custody factors, plus others as appropriate
Who has the burden	The parent seeking to move	The parent seeking to move
Moves within New Jersey	Baures factors had been applied to some in-state moves	N.J.S.A. 9:2-4 factors (A.J. v. R.J., 2019)

What factors does a judge weigh in a relocation case?

The judge applies the custody factors in N.J.S.A. 9:2-4(c) that fit the case and may add others. As the Appellate Division has quoted Bisbing, “cause” is “determined by a best interests analysis in which the court will consider all relevant factors set forth in N.J.S.A. 9:2-4(c), supplemented by other factors as appropriate.”

The factors that tend to matter most in a move case include:

• the parents’ ability to agree, communicate and cooperate about the child;
• any history of unwillingness to allow parenting time not based on substantiated abuse;
• the child’s relationship with each parent and with siblings;
• the stability of each home and the quality and continuity of the child’s education;
• the geographical proximity of the parents’ homes;
• the time each parent has spent with the child, and each parent’s work responsibilities;
• the child’s preference, when the child is old enough to form an intelligent decision.

The court may also hear from other adults close to the child, review documents, interview the children at the judge’s discretion, and hear testimony from qualified professionals. For the factors in general, see how New Jersey courts decide child custody.

What should a parent who wants to relocate prepare?

Prepare a plan that answers the custody factors before you file, not after you move. A judge will want to know why the move is good for the child, where the child will live and go to school, and how the child’s relationship with the other parent will continue across the distance.

• The reason for the move, with documents such as a job offer or a lease.
• School and care details for the new location.
• A long-distance parenting time schedule covering school breaks, summers, holidays, calls or video time, and travel costs.
• Your record of supporting the other parent’s time.
• Your current order or agreement, including any relocation clause. A move may also mean changing an existing judgment; see post-judgment matters.

Do not pack first and file later.

What can the other parent do if they object?

Say no clearly and in writing, and respond to any application the moving parent files. The objecting parent does not have to prove the move is harmful, because the parent seeking to move must show cause. The objecting parent can still present evidence on each factor, including their part in the child’s daily life.

Bisbing noted that the parent of alternate residence “may similarly offer significant information about the child,” such as school involvement and how the current schedule actually works. If the child has already been taken out of state without consent or an order, act quickly. In Dever, the mother filed an order to show cause, and the court ordered the children back.

What about moving within New Jersey?

N.J.S.A. 9:2-2 covers removal from the state, but an in-state move can still change custody or parenting time. In A.J. v. R.J. (2019), the Appellate Division held that the old Baures factors no longer apply to moves within New Jersey. The court applies the best-interests factors in N.J.S.A. 9:2-4 instead.

There, the parent of primary residence moved about 62 miles away, and the other parent learned of it days later by text message. The court held that when the other parent opposes an in-state move by the parent of primary residence, the opposing parent must show it is a change in circumstances affecting the children’s best interests. If so, the judge reviews custody and parenting time under N.J.S.A. 9:2-4. The court also said each parent’s duty to report a change of residence should be in writing.

Why talk to The Legal Assistance Center about child relocation in New Jersey?

Danielle Joseph-Key, Esq., is the founder and managing attorney of The Legal Assistance Center. She graduated from Rutgers-Camden School of Law in 2001, has been a member of the New Jersey bar since 2001, has more than 25 years of experience, and is a former municipal prosecutor.

She handles family law matters in the New Jersey Family Part, including child relocation and child custody and parenting time cases, from the office at 722 Gaskill Ave in Mt. Ephraim and virtually across New Jersey.

For full representation, the first 30-minute consultation is free. If you are handling your own case, the firm’s virtual flat-fee Advice & Counsel sessions start at $59, with no retainer required. Before you move, or before you answer the other parent’s request, talk to a lawyer about your case. Call (732) 642-5635.