On April 23, 2001, the Supreme Court of New Jersey decided Baures v. Lewis, 167 N.J. 91 (2001). For more than 16 years, Baures guided post-divorce interstate relocation of children in a manner that generally favored the primary-custodial parent who sought relocation. On Aug. 8, 2017, the Supreme Court decided Bisbing v. Bisbing, __ N.J. __ (2017), which reversed Baures and set the new standard for interstate relocation disputes—a “best interests” analysis. Bisbing is a landmark decision thatserves as a departure from Baures.

In its 2001 decision, the Baures court recognized that courts had “struggled to accommodate the interests of parents and children in a removal situation ….” Baures, 167 N.J. at 91. Although Baures set forth a framework to resolve parents' relocation disputes, the above quote also fittingly describes the intervening period between Baures and Bisbing. That is, while Baures provided a cogent framework to guide relocation disputes, the framework did not adequately accommodate the interests of children and both parents in a removal situation. Bisbing, however, accommodates the interests of children and both parents by placing the parents on equal footing. To that end, the court departed from Baures and held that all relocation disputes—regardless of custodial arrangement—must be determined under the “best interests” factors set forth in N.J.S.A. 9:2–4(c). Thus, following Bisbing, a primary custodial parent who seeks post-divorce relocation to another state must establish the “good cause” required by N.J.S.A. 9:2-2 through the best interests factors set forth in N.J.S.A. 9:2–4(c).

To better understand Bisbing's impact and its role in future cases, it is important to understand how the Supreme Court arrived at Baures and why it departed from it in Bisbing. In Baures, the court emphasized “the identity of the interests of the custodial parent and child” and opined that “social science research links a positive outcome for children of divorce with the welfare of the primary custodian and the stability and happiness within that newly formed post-divorce household.” Baures, 167 N.J. at 106 (citing Judith S. Wallerstein & Tony J. Tanke, To Move or Not to Move: Psychological and Legal Considerations in the Relocation of Children Following Divorce, 30 Fam. L. Q. 305, 311-12 (1996)). The Baures court also cited with approval to In re Marriage of Burgess, 913 P.2d 473 (Cal. 1996), a relocation case from the California Supreme Court that relied on Dr. Wallerstein's “primary caretaker” theory she espoused as amica curiae. The Baures court concluded that social science failed to confirm “any connection between the duration and frequency of visits and the quality of the relationship of the child and the noncustodial parent.” Baures, 167 N.J. at 107 (citing Wallerstein at 312). In sum, any fair reading of Baures discloses that the court relied heavily on Wallerstein's work—as did many courts throughout the country that faced relocation applications.