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Written Agreements Between Parties Must Be Enforced

By Snyder & Sarno on April 12, 2016


Relocation can be defined as a family, or someone, moving to a different place to live.  When discussing relocation in divorce cases, it’s a difficult situation to handle.  Two reasons for relocating could be new employment or remarriage of a party.  However, in order to relocate with children, either the parents must agree or the court must grant permission. In determining whether to grant permission, courts must apply one of two standards: (1) a best interest analysis; or (2) the less stringent Baures analysis. The best interest analysis is applicable when there is no prior custody arrangement or there is a custody arrangement in which one parent is the primary parent. The Baures analysis is applicable when there is a custody arrangement in which one parent is the primary parent. Under the best interest analysis, a parent must prove that it is in the children’s best interest to relocate. Under the Baures analysis, a parent must prove that there is a good faith reason to relocate and that the relocation will not be harmful to the children’s interests.

In Bisbing v. Bisbing, the husband appealed an order that allowed his ex-wife to relocate to Utah with their eight-year-old twin girls without holding a plenary hearing. The parties married in 2005 and separated in August 2013.  Later that year, the wife began a long-distance relationship with a man in Utah.  In March 2014, the parties entered into a marital settlement agreement (MSA).  The parties agreed to share joint legal custody and to designate the wife as the primary parent. In addition, in the MSA, the parties specifically agreed that neither could relocate with the children unless they both agreed.

Three months after the divorce, the wife quit her job to become a stay at home mom.  Less than six months after that, she notified the husband that she was getting married to the man in Utah, that she wanted to move there with him and asked the husband permission to take the daughters with her.  The husband refused, and the wife filed a motion to relocate without the need for a plenary hearing.  The trial court granted the wife’s request.

In a published opinion, the Appellate Division reversed the trial court and remanded the case for a plenary hearing with specific instructions. For example, if the trial court finds that the wife negotiated the MSA in bad faith by obtaining custody and then seeking to apply the Baures analysis, the best interest analysis will apply. However, if the trial court finds that the wife did not negotiate the MSA in bad faith and also finds that the wife has proven a substantial unanticipated change in circumstances, then the Baures analysis will apply. Finally, if the trial court finds that the wife did not negotiate the MSA in bad faith but also finds that the wife has not proven a substantial unanticipated change in circumstances, then the best interest analysis will apply.

If you have an issue with relocation and child custody , contact the skilled matrimonial attorneys at Snyder & Sarno, LLC.  The attorneys at Snyder & Sarno are experienced in handling cases where the parties share children.  Call us today at (973) 274-5200.

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