When attending mediation or coming to a settlement agreement in a custody situation, it is imperative that both parents are involved in an open and honest manner. Coming to a fair settlement can be an excellent outcome that best serves the children and the family. One provision that some parents choose to include in their agreements are called “non-relocation agreements.” These provisions acknowledge that the neither parent will relocate with the children out of the state of New Jersey. Even though this is already the law in New Jersey, some families will agree in advance that the custodial parent will not ever relocate out of the state. However, some recent case law examined a situation in which a parent agreed to such a provision but then relocated out of state despite the terms of the agreement.
In Bisbing v. Bisbing, the parents were divorced, and their MSA included a provision that stated neither parent would relocate with the children outside of New Jersey. The MSA also stated that the wife would have primary residential custody of the children, but this was premised on the non-relocation clause. Less than a year after the divorce was final, the wife called the husband and told him she intended to relocate to Utah to get married. The husband refused to grant permission, and so the wife filed a motion to relocate, which was granted without holding a hearing. The husband appealed, and the appellate court reversed the trial court and ordered that it conduct a hearing. The appellate court ordered that the trial court needed to determine whether the wife negotiated the MSA in bad faith. If so, the court needed to apply the best interest factors to decide where the children should reside. If bad faith was not demonstrated, then the court needed to decide whether the wife could successfully show a substantial and unanticipated change of circumstances such that she could avoid enforcement of the non-relocation agreement. If the husband could show that the wife’s remarriage was anticipated or should have been anticipated, then he should be able to rely upon and enforce the non-relocation clause.
The suggestion from this case is that there are some circumstances in which a non-relocation clause is not reliable. The appellate court seems to be recognizing that in the event a relocation was not anticipated at the time the MSA is negotiated, it may be possible for the parent wishing to relocate out of state with the children to avoid enforcement of a non-relocation agreement.
Relocation after divorce or separation is common as parents start to build a new life. We have experience in helping our clients understand the rules surrounding relocation and how those rules may apply in their cases. Contact us today at (732) 529-6937 to talk about your children and your future.