Noah Baumbach's latest film, Marriage Story, chronicles the breakdown of a marriage between a director, Charlie, and his actor wife, Nicole, as they struggle through a divorce trying to co-parent while living on opposite coasts. When the marriage falls apart, Nicole moves from Brooklyn to Los Angeles, where her family lives, with their young son Henry for a job opportunity. Charlie contests Nicole's relocation to L.A., which separates him from Henry and negatively impacts his parenting time with Henry, arguing over and over "we're a New York family." This is a reality many divorced parents face. The emotional and financial consequences of divorce can often result in one or both parents moving to a different state or sometimes, less dramatically, a different town or county within the same state. Where there is a true shared custody arrangement (i.e., both parents have substantial parenting time with their children), a relocation can substantially affect parenting time and can thus become a hotly-contested issue.

Here in New Jersey, when a parent wants to relocate to another state, like Nicole did in Marriage Story, this is considered interstate relocation. When a parent wants to relocate within the borders of New Jersey, for example from Bergen County to Monmouth County, it is known as intrastate relocation. The legal standards for both interstate and intrastate removal have changed dramatically over the last 20 years, and the New Jersey courts have, up until recently, treated the two types of relocation differently. Now, however, following the Appellate Division's recent decision in A.J. v. R.J., __ N.J. Super. __, 2019 WL 4924420 (App. Div. 2019), both interstate and intrastate relocation cases are assessed under the same standard—the best interests of the child standard.

The evolution of New Jersey's relocation law begins in 2001, with Baures v. Lewis, 167 N.J. 91 (2001), wherein the Supreme Court developed a set of 12 factors to consider when reviewing a parent of primary residence's interstate removal application. Importantly, the Baures court significantly relied upon social science research which linked the happiness of the parent of primary residence to the child's happiness, and thus these factors essentially created a presumption in favor of the parent of primary residence's relocation. So long as the parent of primary residence could establish "good cause" for the relocation out of state, e.g., relocating to pursue a better employment opportunity or he or she was moving closer to relatives, the courts generally permitted the relocation.

By contrast, a move within the borders of New Jersey (intrastate relocation), generally did not require court approval. In fact, an intrastate move was considered to be within the discretion of the parent of primary residence. Our appellate court held in the 2003 decision of Schulze v. Morris, 361 N.J. Super. 419 (App. Div. 2003), that a move from one town or county in New Jersey to another was not considered a true form of relocation. As a result, unlike with an interstate relocation, the parent of primary residence was not required to file a motion for permission to relocate within the state of New Jersey. Instead, the parent of alternate residence would be required to file an application with the court opposing the intrastate move. Moreover, to prevail, the parent of alternate residence had to establish that the intrastate move created a substantial change in circumstances which was inimical to the child's best interests or to that parent's relationship with the child. If the parent of alternate residence could show that the move would negatively impact his or her custodial and parenting time arrangement to the detriment of the child, then our courts would apply the 12 Baures factors to determine whether such a modification was warranted.

However, in 2017, our Supreme Court overturned its decision in Baures and significantly altered the standard for interstate relocation. In Bisbing v. Bisbing, 230 N.J. 309 (2017), the Supreme Court held that relocation applications were to be determined using a best interests of the child standard rather than the 12 Baures factors. The application of the best interests of the child standard, which is the same standard used to determine (and modify) custody and parenting time, requires the courts to weigh the statutory factors set forth in N.J.S.A. 9:2-4(c) to assess if a move out of New Jersey is in the best interests of the child. A clear departure from the "good cause" factors set forth by Baures, which had given great deference to the parent of primary residence's desire to move, the best interest analysis places both parents on a far more equal playing field and, more importantly, places the needs of the child/children at the forefront. Notably, the Bisbing decision dealt specifically with an out-of-state move, which left attorneys and judges alike without any direction as to whether the holding in Bisbing applied to intrastate moves or whether the intrastate standard remained largely at the discretion of the parent of primary residence. Fortunately, two years after Bisbing, the Appellate Division addressed this incongruity in its recent decision of A.J. v. R.J.

In A.J. v. R.J., the mother, the parent of primary residence, relocated within New Jersey with the two children from Elizabeth to Mount Holly, without consent of the father or permission form the court. The two towns, however, are over 60 miles apart significantly increasing the travel time between the parties' homes from minutes away to slightly over an hour. Thereafter, the father filed an application to block the move and transfer custody of the children to him. The trial court, after a plenary hearing, ordered the mother to live within a 15-mile radius of the father. When the mother failed to move back, the father filed another application seeking a transfer of custody of the children to him as a sanction for the mother's noncompliance with the court order. The trial court granted the father's application. The mother appealed the order that transferred custody of the children to the father. On appeal, the Appellate Division reversed and remanded the transfer of custody and noted that although the initial order regarding relocation had not been appealed, its application of the wrong law produced the unsound foundation upon which the later transfer of custody rested.

The Appellate Division held that although the trial court recognized that Baures had since been overruled by Bisbing, it had relied upon the intrastate relocation case, Schulze, which applied the now overturned Baures factors in its decision. The Appellate Division in A.J. v. R.J. clarified, "[b]ecause the science and anticipated outcomes undergirding the Baures factors have not borne out as the Court anticipated and no longer apply to interstate removals, they should not apply to the intra-state relocations discussed in Schulze." Instead, when a parent of primary residence seeks to relocate within New Jersey, and the parent of alternate residence opposes, he or she must establish that the move constitutes a change in circumstances affecting the best interests of the child. If the parent of alternate residence makes this prima facie, initial showing, then a trial court must apply the best interests standard outlined in Bisbing to determine whether the relocation should be permitted.

While this decision codifies the best interests standard for both interstate and intrastate relocation, there remains a critical procedural distinction. Although, the Appellate Division in its decision in A.J. v. R.J. held that Bisbing—not Schulze—applies to intrastate relocation applications, the burden of proof remains, as in Schulze, on the parent of alternate residence to oppose the relocation. Pursuant to the holding in A.J. v. R.J., the parent of alternate residence bears the burden of showing the intrastate move constitutes a change in circumstances affecting the best interests of the child. In contrast, for an interstate move, Bisbing dictates that the parent of primary residence bears the burden of proving that the move is in the child's best interests.

Considering that both interstate and intrastate relocation cases are now assessed under the same best-interest standard, it is interesting that the burden still shifts, somewhat arbitrarily, depending on whether the move is within New Jersey or across the state line. Arguably, it is unreasonable that the burden shifts based solely on state lines, irrespective of distance. For example, where parent of primary residence wants to move from Jersey City to Manhattan, and does not have consent of the parent of alternate residence, it is his or her burden to show that the eight-mile move is in the best interests of the child. But, if that same parent of primary residence wanted to move from Bergen County to Monmouth County, a 60-mile move within the state of New Jersey, no court approval would be necessary, unless the parent of alternate residence objects, and then it becomes the parent of alternate residence's burden to show the move constitutes a change in circumstances affecting the best interests of the child. Is it reasonable that the burden should depend on state line versus distance? Whether fair or not, under the current relocation paradigm this is the procedure. Nevertheless, it's a fact-sensitive analysis dictated by the best interest of the child, regardless of which parent carries the initial burden.

In the film Marriage Story, as in real life, at the crux of the relocation dispute is spending time with the child. Generally, one parent is no less devoted than the other, but one parent's decision to relocate likely infringes on the other parent's parenting time and parental rights. It's a difficult decision and one the courts in New Jersey do not take lightly, even on intrastate relocation cases, as evidenced by the court's latest decision to apply the best-interest standard across the board to all relocation cases—regardless of which parent carries the burden, what is best for the child should always win the day.

Brian P. McCann is a partner with Callagy Law in Paramus. He is a Certified Matrimonial Law Attorney, a designation granted by the New Jersey Supreme Court. Kristen E. Marinaccio is an attorney with the firm.