By: Sheryl J. Seiden 
Until August 8, 2017, for sixteen years, the law in New Jersey on relocation created a presumption favoring relocation. This presumption was created by the Supreme Court of New Jersey in Baures v. Lewis, 167N.J. 91 (2001), and was overturned in the recent case of Bisbing v. Bisbing, 230 N.J. 309. The Court in Baures relied on social science research that had not been challenged, and on underlying statutes and case law of other jurisdictions which the Court believed evidences a trend toward relocation. The law relied upon by the Supreme Court of New Jersey in Bauers was later overruled by subsequent case law or statute but the Bauers holding was not reexamined by the Supreme Court of New Jersey for sixteen years. The New Jersey judiciary and practitioners were therefore relying on outdated law. The sixteen years that it took to change the landscape of relocation in our state supports our need as practitioners to dissect the case law that is relied upon by our Courts to ensure that our law remains consistent with changing times.
What Is A Best Interest Standard
The standard for addressing relocation cases is now a best interest standard. While the law has changed, the best interest standard is not new to New Jersey law. Prior to Bisbing, 230 N.J. 309, when parties had a true shared custody arrangement, the Court applied a stricter standard in adjudicating a removal application. Specifically, in a true shared custody arrangement, the right to remove a child from the State of New Jersey required a change in the custody arrangement requiring a best interest analysis. Baures, 167 N.J. at 115. In such a case, the party seeking to change custody had the heightened burden of demonstrating that there was a substantial change in circumstances since the current custody arrangement was established and that the best interest of the child necessitates said change in custody. O’Connor v. O’Conner, 349 N.J. Super. 381, 385 (App. Div. 2002); Chen v. Heller, 334 N.J. Super. 361, 381 (App. Div. 2000).
New Jersey Law on Relocation Before Baures
Prior to the Supreme Court of New Jersey’s ruling in Bisbing, in August 2017, it had long been recognized that New Jersey had a presumption in favor of relocation in traditional custodial cases. In Baures, the Supreme Court of New Jersey grappled with the conflict between the custodial parent’s need for autonomy and the noncustodial parent’s belief that if the child relocates, his or her connection to the child will be lost forever. In addressing this struggle, the Court reviewed, inter alia, the prior case law which recognized that “the identity of the interests of the custodial parent and the child, and as a result, accords particular respect to the custodial parent’s right to seek happiness and fulfillment.” Baures, 167 N.J. at 97. 
In Holder v. Polanski, 111 N.J. 344 (1988), the relocation case that preceded Baures, the Supreme Court of New Jersey noted that there are no restrictions on the non-custodial parent in terms of relocation. See also, D’Onofrio v. D’Onofrio, 144N.J. Super. 200 (Ch. Div. 1976), aff’d, 144 N.J. Super. 352 (App. Div. 1976). The Court specifically stated: “[a]s men and women approach parity, the question arises when a custodial mother wants to move from one state to another, why not?” Holder, 111 N.J. at 349.
In 1984, before Holder v. Polanski was decided, the Supreme Court of New Jersey addressed the issue of what was sufficient cause for the Court to grant a custodial parent’s application to relocate with his or her child in the case of Cooper v. Cooper, 99 N.J. 42, 56 (1984). In Cooper the Supreme Court held that to establish sufficient cause for removal, the custodial parent must first show that there is a real advantage to the parent in the move and that the move is not inimical to the best interests of the child. Cooper, 99 N.J. at 56. The Court held that the advantage had to be a sincere and genuine desire of the custodial parent to move and a sensible good faith reason for the move. Id. If the custodial parent could meet this initial burden, then the Court would consider visitation and other factors to determine whether the custodial parent has sufficient cause to permit the removal under the statute. Id. The Court then would examine three factors: (1) whether the quality of life of the child and custodial parent would be maintained or enhanced by the move; (2) the integrity for the move and opposition to the move; and (3) whether a reasonable and realistic visitation schedule could be achieved after the move. Id. at 56-57. The standard established by the Supreme Court in 1984 made it difficult for the custodial parent to obtain permission to relocate as the Court stated that the “statutory language affirms that the purpose of the statute is to preserve the rights of the noncustodial parent and the child to maintain and develop their familiar relationship. This mutual right of the child and the noncustodial parent to develop and maintain their familiar relationship is usually achieved by means of visitation between them. Id at 50.
In its decision, the Court in Baures v. Lewis, noted that historically, courts throughout the country had disfavored removal of a child from its jurisdiction based on a concern that it would destroy the relationship between the noncustodial parent and a child.  The Court further recognized that the historical trend disfavoring relocation had been related to a shift in the presumption in support of relocation given the geographic mobility of the United States population and the demands placed on parties post-divorce.  The Court noted that within four years of a divorce or separation, mothers with custody of a child move to a new location. Id. at 105. These statistic were consistent with the trend in the United States at the time whereby one in five Americans relocated every year. Id. at 105.
The Law Relied Upon In Bauers
One of the reasons for adopting a presumption in favor of relocation was a consideration by the Court in Baures that the case law of seven other jurisdictions evidenced a liberal trend in relocation cases. The Court was particularly focused on the fact that “many courts have significantly eased the burden on custodial parents in removal cases.” Id. at 108. The Court considered the law in the following other jurisdictions in making its determination to relax the laws of relocation in New Jersey: California, Colorado, Minnesota, New York, South Dakota, Tennessee, and Wisconsin.
The Court took particular interest in how the relocation laws in New York, California and Colorado had shifted to become more liberal in permitting a custodial parent to relocate. Specifically, at the time that Baures was decided, the New York Court of Appeals had replaced the term “exceptional circumstances” with the general “best interests” test in relocation cases. Tropea v. Tropea, 665 N.E.2d 145 (N.Y. 1996). Before Tropea was decided, in New York, absent proof of exceptional circumstances justifying the intended relocation, and if the noncustodial parent would be deprived of his or her regular access to the child, a litigant’s application to relocate would be denied. Tropea, 665 N.E.2d at 149-50. The New York Court of Appeals changed the focus from that of the needs of the parents to that of the best interest of the child in its 1996 ruling in Tropea.
The Supreme Court of New Jersey also examined the then relatively recent ruling in In re Marriage of Burgess, 913 P.2d 473 (Cal. 1996) where the California Supreme Court rejected a rigid test which required the custodial parent to demonstrate a necessity for the move in order to be able to relocate. The Burgess Court established a standard whereby the lower courts were directed to take into account the custodial parent’s “presumptive right” to relocate – this decision shifted the trend in the law to a presumption in favor of relocation. As the Supreme Court of New Jersey stated in Baures: “the California Supreme Court abandoned the prior hostile approach taken toward the custodial parent in relocation cases.” Baures, 167 N.J. at 108.
In Baures, the Supreme Court of New Jersey also focused on the Colorado case of In re Marriage of Francis, 919 P.2d 776 (Colo. 1996) where the Court reversed a trial court’s denial of a parent’s request to relocate to attend school and even held that the parent would lose custody if she enrolled in the out of state program. The Colorado Supreme Court held that “the child’s interests are so interwoven with the new family unit that a court must consider the custodial parent’s interests.” Baures, 167 N.J. at 109. As a result, the Colorado Supreme Court created a presumption favoring removal at that time.
In adjudicating the presumption in favor of relocation, the Bauers Court observed a trend among other jurisdictions which provided a more liberal approach to relocation and thereafter chose to join in this new trend.
Colorado Replaced Its Presumption
In Favor Of Relocation With A Best Interests Analysis
In rendering the Baures v. Lewis decision, the Supreme Court of New Jersey specifically relied upon the Colorado Supreme Court’s decision in In re Marriage of Francis, 919 P.2d 776 (Colo. 1996), where the highest Court in Colorado created a presumption that generally permitted a custodial parent to relocate with a Child. In Francis, the custodial parent sought to relocate to attend school. The Trial Court held that if the mother enrolled in the school program, she would lose custody of her children. The Colorado Supreme Court reversed and held that the “child’s best interests are served by preserving the custodial relationship, by avoiding re-litigating of custody decisions, and by recognizing the close link between the best interests of the custodial parent and the best interest of the child. In a removal dispute, this leads logically to a presumption that the custodial parent’s choice to move with the children should generally be allowed.” Id. at 784.
At the time that the Colorado Supreme Court decided Francis in 1996 the Court recognized that historically, many states had disfavored relocation as a means of promoting a meaningful relationship between the child and the noncustodial parent and as a means of avoiding disputes over which state has jurisdiction in these types of cases. The Colorado Supreme Court however, recognized that the trend in relocation cases was changing -- in 1996 – as it was presumed that the custodial parent’s decision to relocate with the child was in the best interests of the child. Id. at 783-84. The Francis Court further cited the Supreme Court of New Jersey case of Cooper v. Cooper, 99 N.J. 42 (1984) in recognizing that “the child’s interest have become so interwoven with the well-being of the new family unit that ‘the determination of the child’s best interests require that the interests of the custodial parent be taken into account.” Id. at 784.
In Francis, the Colorado Supreme Court articulated a three part test to be applied in relocation cases as follows: (1) the custodial parent first must present a prima facie showing that there is a sensible reason for the move; (2) if the custodial parent makes a prima facie showing, then a presumption allowing the child to remain with the custodial parent arises and the burden shifts to the noncustodial parent to show that the move is not in the child’s best interest; and (3) the noncustodial parent may overcome the presumption by showing that one of the factors in the Colo. Rev. Stat. §14-10-13(2) was met, i.e. that the child would be endangered by the move, or by showing that negative impact of the move outweighs the advantages of the child remaining with primary caregiving. Id. at 785. See also In re Marriage of Donovan, 36 P.3d 207 (Colo. App. 2001) (Court confirmed the three part test articulated in Francis which it applied to hold that the trial court misapplied this three part test in denying mother’s application to relocate with the parties’ child from Colorado to Las Vegas, Nevada).
This three part test which existed at the time that Baures was decided was abolished by legislation in Colorado. On September 1, 2001,just four months after the Supreme Court of New Jersey decidedBaures v. Lewis, the Colorado legislature amended Colo. Rev. Stat. §14-10-129, and said amendments specifically eliminated the three part test set forth in Francis in addressing a relocation application. In the case of In re Marriage of Ciesluk, 113 P.3d 135 (Colo. 2005), the Colorado Supreme Court confirmed that Francis, 919 P.2d 776 (Colo. 1996) was superseded by statute. As a result, the law in Colorado changed from a presumption in favor of relocation to a more neutral standard where there is neither a presumption in favor of or against relocation and the Court considers the issue based on a best interest analysis. The Colorado Supreme Court states “[u]ltimately it is incumbent upon the trial court to consider all of the relevant factors under §14-10-129(2)(c) and to decide what arrangements will serve the child’s best interest.” Id. at 137.
In Ciesluk, the Colorado Court of Appeals stated that “the legislative history of §14-10-129 indicates that amendments to the statute were proposed because of dissatisfaction with the In re Marriage of Francis, supra, and were intended to overrule Francis.” In re Marriage of Ciesluk, 100 P.3d 527, 528 (Colo. App. 2004). The Colorado Court of Appeals in Ciesluk , further reiterated that “[w]e conclude the trial court properly found that §14-10-129, as amended, contains no presumption in favor of the primary residential parent . . .” Id. at 530.
In Ciesluk, the Colorado Court of Appeals found that the trial court’s reliance on Dr. Sanford L. Braver’s scholarly article entitled Relocation of Children after Divorce and Children’s Best Interests: New Evidence and Legal Considerations published in 17 J. Fam. Psychol. No. 2 at 206-19 (2003) was justified. In this case, the trial court informed the litigants that it was aware of Dr. Braver’s study which detailed the effects of relocation on the children of divorced parents. The Court further noted that one of the findings in the foregoing study was that “there was no empirical basis on which to justify a legal presumption that a move which would improve the life of a custodial parent would necessarily confer benefits on the child who moves with the parent.” In re Marriage of Ciesluk, 100 P.3d at 531. Moreover, the Colorado Supreme Court’s decision in Ciesluk affirmed the trial court’s reliance on Dr. Braver’s study which is contrary to Dr. Wallerstein’s social science research which was relied upon by the Supreme Court of New Jersey in Baures v. Lewis.
In relocation cases, the Colorado statute now requires courts to consider nine (9) specifically tailored factors. Pursuant to Colo. Rev. Stat. §14.10-129(2), in adjudicating a relocation application, the Colorado courts will address the relocation application as a request to modify a prior parenting time order, and the following factors will be considered:
- The reason why the party wishes to relocate with the child;
- The reason why the opposing party is objecting to the proposed relocation;
- The history and quality of each party’s relationship with the child since any previous parenting time order;
- The educational opportunities for the child at the existing location and at the proposed new location;
- The presence or absence of extended family at the existing location and at the proposed new location;
- The presence or absence of extended family at the existing location and at the proposed new location;
- Any advantages of the child remaining with the primary caregiver;
- Whether the court will be able to fashion a reasonable parenting time schedule if the change requested is permitted; and
- Any other relevant factors bearing on the best interests of the child.
Moreover, the statute also provides for a consideration of whether a party committed an act of domestic violence, whether there was a pattern of domestic violence and if so, whether it occurred before or after the parenting order at issue was entered.
Accordingly, in Bauers, the Supreme Court of New Jersey’s reliance on the Colorado Supreme Court’s holding in Francis as guidance on the issue of relocation in New Jersey was misplaced shortly after its ruling given the change in the laws in Colorado which eliminated the presumption in favor of relocation. Whereas the laws in Colorado were relied upon by the Court in Baures, the change in these laws and shift in the acceptance of social science research was used by the Court in Bisbing to support a position that Baures v. Lewis should also be reconsidered. The Bisbing Court specifically recognized that the Colorado case of Francis, supra, was a leading cases relied upon by the Bauers Court and was overruled by statute. Bisbing, 230 N.J. at 330 – 331.
California’s Presumption In Favor Of Relocation Has Been Limited Based
On Effect Of Relocation On Noncustodial Parent’s Relationship With The Child
In deciding Baures, the Supreme Court of New Jersey was particularly interested in the California Supreme Court’s decision in In re Marriage of Burgess, 913 P.2d 473 (Cal. 1996), where the Court “abandoned the prior hostile approach taken toward the custodial parent in relocation cases.” In Burgess, the California Supreme Court rejected a strict requirement that the custodial parent establish a “necessity” for the move. The California Supreme Court specifically “directed the lower courts to take into account the custodial parent’s ‘presumptive right’ to move.” Baures, 167 N.J. at 109.
The ruling in Burgess was codified by the California legislature in 2003 when it enacted Cal. Fam. Code §7501 which provides, in relevant part, “[I]t is the intent of the Legislature to affirm the decision in In re Marriage of Burgess (1996) 13 Cal.4th 25, and to declare that ruling to be the public policy and law of this State.”
The Baures’ Court viewed the California Supreme Court’s decision in Burgess as establishing a trend in favor of relocation. Approximately three years after Baures was decided and seven years after Burgess was decided, the California Supreme Court limited the presumption in favor of relocation by holding that the detrimental effect of the relocation on the noncustodial parent’s relationship with the child has a bearing on the child’s best interest. In In re Marriage of LaMusga, 88 P.3d 81 (Cal. 2004), the California Supreme Court found that the trial court properly denied the mother’s request to relocate with the parties’ children after weighing all of the factors and placing primary importance on the detrimental effect the move would have had on the children’s relationship with their father.
Although the Supreme Court of California sought to clarify the ruling in Burgess, in its decision in LaMusga, the Court placed primary importance on the effect of a proposed move on the relationship between the child and the noncustodial parent which lessened the presumption in favor of relocation. In LaMusga, the strained relationship between the parents gave the Court concern that if the mother relocated, the parties’ children’s relationship with their father would be “lost.” LaMusga, 88 P.3d at 94.
The Court held that even if the custodial parent has a legitimate reason for the proposed relocation of a child and is not acting simply to frustrate the noncustodial parent’s contact with the child, the Court can consider that one reason for the move is to lessen the noncustodial parent’s contact with the child, and as such, change in custody based on the child’s best interest. The Court in LaMusga held if the noncustodial parent can demonstrate that the proposed relocation will cause detriment to the child, a re-evaluation of the existing custody order will be appropriate. In re Marriage of Brown & Yana, 127 P.3d 28 (Cal. 2006).
The California Court applied a stricter standard in the case of In re Marriage of Melville, 18 Cal. Rptr. 3d 685 (Cal. Ct. App. 2004) where the Court transferred custody of the child to the non-relocating parent where evidence showed that the child would not have adequate medical care if the child was relocated to the new location and would not transition well into a new school and new surroundings.
Under California law, if the noncustodial parent can demonstrate an initial showing of detriment to the child upon the relocation, the Court will then examine whether custody should be changed based on the best interest of the child and the following factors will be examined:
- The child’s interest in stability and continuity in the custodial arrangement;
- The distance of the move;
- The child’s age;
- The child’s relationship with both parents;
- The relationship between the parents, including, but not limited to, their ability to communicate and cooperate effectively and their willingness to put the child’s interests above their individual interests;
- The child’s wishes if the child is mature enough for such an inquiry to be appropriate;
- The reasons for the proposed move; and
- The extent to which the parents currently share custody.
In re Marriage of Brown & Yana , 127 P.3d 28, 36 (Cal. 2006).
In Brown, the California Supreme Court affirmed the trial court’s order permitting a mother to relocate to Nevada with the parties’ child without conducting a plenary hearing where father failed to establish a detriment to the child if the relocation occurred.
While the State of California continues to have a presumption in favor of relationship which has been established by case law and affirmed by the state’s legislature, the presumption has been diluted by LaMusga and its prodigy since the Supreme Court of New Jersey ruling in Baures v. Lewis. The Court in Bisbing, supra, acknowledged that California law on relocation has shifted.
New York Places Burden Of Proof On Custodial Parent In Relocation Case
At the time that Baures was decided, the Supreme Court of New Jersey also took note of the fact that its sister State of New York has lessened the burden on custodial parents seeking to relocate. In 1996, the New York Court of Appeals had softened the restrictive laws on relocation by replacing the requirement of “exceptional circumstances” with a general “best interests” test in relocation cases. Tropea v. Tropea, 665 N.E.2d 145 (N.Y. 1996). Prior to Tropea, the New York Courts made the concept of relocation very difficult, if not impossible, for the custodial parent. Specifically, the New York Court of Appeals recognized in Weiss v. Weiss, 418 N.E.2d 377, 380 (N.Y. 1981), “the importance of continued regular and frequent visitation between child and the noncustodial parent and stated that ‘absent exceptional circumstances… appropriate provisions for visitation or other access by the noncustodial parent follows almost as matter of course.”
Tropea specifically rejected the prior three-tiered exceptional circumstances analysis in relocation cases which had developed through case law and it formulated a new standard based on the child’s best interest. The New York Court of Appeals specifically stated: “it serves neither the interests of children nor the ends of justice to view relocation cases through the prisms of presumptions and threshold tests that artificially skew the analysis in favor of one outcome or another. Tropea, 665 N.E.2d at 151.
The factors established by Tropea to be considered in a New York relocation matter were as follows:
- Each parent’s reasons for seeking or opposing the move;
- The quality of the relationships between the child and the custodial and non-custodial parents;
- The impact of the move on the quantity and quality of the child’s future contact with the non-custodial parent;
- The degree to which the custodial parents and child’s life may be enhanced economically, emotionally and educationally by the move; and
- The feasibility of preserving the relationship between the non-custodial parent and the child through suitable visitation arrangements.
Tropea , 665 N.E.2d at 151.
While Tropea shifted the focus from the desires and needs of the parents to the best interest of the child, over the last twenty-two years, the standard in New York for relocation continues to remain a difficult one to overcome for the custodial parent.
Tropea did not address the issue of which parent bears the burden of proof as to establishing the child’s best interests in a relocation case. The lower courts in New York, however, have placed this burden on the custodial parent, and as evidences by the case law below, the burden is not easily met by a custodial parent.
In Paul v. Pagnillo, 13 A.D.3d 971 (N.Y. App. Div. 2004), the Court held that the relocating parent bears the burden to prove by preponderance of the evidence that proposed relocation is in the child’s best interest. In Paul, the Appellate Court reversed trial court’s order granting mother permission to relocate as it held that the mother failed to satisfy her burden of proof. In that case, the mother sought to relocate with the parties’ ten year old child to join her new husband who had a found a position in Mississippi. As the trial court found that there was no evidence to demonstrate the mother’s new husband’s position was permanent, it denied her application to relocate. In affirming the Court’s decision, the appellate court specifically noted that the proposed relocation would deprive the child of frequent and regular contact with the father, which the Court deemed a valuable asset in the child’s life.
While the Bauers Court interpreted the New York Court of Appeals decision in Tropea as a trend that New York was also liberalizing its laws on relocation, the lower court cases that followed Tropea evidence that the burden to prove that it is in the child’s best interest to relocate in New York remains with the custodial parent. The cases that follow Tropea evidence that the reliance on New York case law in Bauers thereafter shifted to a best interest analysis as opposed to a presumption of relocation.
South Dakota Has A Best Interest Standard
In Baures, the Supreme Court of New Jersey also cites the South Dakota case of Fortin v. Fortin, 500 N.W.2d 229 (S.D. 1993) in its opinion in support of the state’s presumption in favor of removal.  While the presumption of the South Dakota’s statute as favoring removal in Fortin has not been overturned, the law in South Dakota is a best interest analysis. See Brosnan v. Brosnan, 840 N.W.2d 240 (S.D. 2013).
S.D. Codified Laws §25-5-13 provides that "[a] parent entitled to the custody of a child has the right to change his residence, subject to the power of the circuit court to restrain a removal which would prejudice the rights or welfare of the child." The Court will then determine the relocation application based on whether it is in the best interest of the child to relocate out of state. Hogen v. Pifer, 757 N.W.2d 160 (S.D. 2008). In examining the best interests of the child, the Circuit Court may consider the following factors: "fitness, stability, primary caretaker, child's preference, harmful parental misconduct, separating siblings, and substantial change in circumstances." Id. Additionally, the Supreme Court of South Dakota has stated that "[w]e have consistently stated that these factors are to be viewed as guideposts for trial courts, thus, 'a court is not bound to make a specific finding in each category; indeed, certain elements may have no application in some cases, and for other cases there may be additional relevant considerations. In the end, our brightest beacon remains the best interests of the child.'" Beaulieu v. Birdsbill , 815 N.W.2d 569, 572 (S.D. 2012) (quoting Zepeda v. Zepeda , 632 N.W.2d 48, 53 (S.D. 2001) ).
Since Fortin, other cases have been distinguished from Fortin and the Supreme Court of South Dakota has changed custody from the custodial parent to the noncustodial parent based on the custodial parent’s relocation where it found that relocation was not in the child’s best interest. See Berens v. Berens, 689 N.W.2d 207 (S.D. 2004) (Supreme Court of South Dakota affirmed an order transferring custody of the children from mother to father based on children’s best interests where court discredited mother’s allegations of domestic violence and sexual abuse and where father had certain medical issues and was illiterate and had issues retaining employment, the trial court did not give merit to mother’s focus on children’s need for access to extended family.)
Fortin was also distinguished by the Supreme Court of South Dakota in Hogen v. Pifer, 757 N.W.2d 160 (S.D. 2008), where the Court affirmed the denial of mother’s relocation application where both parties were very involved in the child’s life. As such, the trial court denied the relocation application “for the sole reason that the move would disrupt the noncustodial father’s visitation and influence over his son.” Id. at 164.
While the South Dakota case law relied upon by the Supreme Court of New Jersey in Baures remains good law, the South Dakota cases that followed since Baures, evidence that South Dakota has employed a best interest standard for adjudicating relocation cases. The best interest analysis does not support a presumption of relocation.
Tennessee Has A Two-Prong Test For Determining Relocation
In adjudicating Baures v. Lewis, the Supreme Court of New Jersey also referenced the law in the state of Tennessee citing the case of Taylor v. Taylor, 849 S.W.2d 319 (Tenn. 1993) for creating a “strong presumption” in favor of relocation of the child and the custodial parent. Baures, 167 N.J. at 224.
Tennessee has a two prong standard. First, Tenn. Code Ann. §36-6-108(d)(1) establishes a presumption in favor of relocation unless the noncustodial parent can establish: (a) the relocation does not have a reasonable purpose; (b) the relocation would pose a threat of specific and serious harm to the child that outweighs the threat of harm to the child of a change of custody; or (c) the parent’s motive for relocating with the child is vindictive in that it is intended to defeat or deter visitation rights of the noncustodial parent or the parent spending less time with the child. If the noncustodial parent can establish one of the foregoing factors, then the standard shifts to a best interest analysis. Tenn. Code Ann. §36-6-108(e) (“if the court finds (10) or more of the grounds designated in subsection (d) the court shall determine whether or not to permit the relocation of the child based on the best interest of the child.”).
Since its 1993 decision in Taylor, the Tennessee Courts seems to have hardened with regard to what is considered to be a reasonable purpose for the relocation. The foregoing statute was enacted in 1996. Moreover, the case law thereafter limited the custodial parent’s unfettered right to relocate. In both Mitchell v. Mitchell, 2005 Tenn. App. Lexis 366 (Tenn. Ct. App. June 27, 2005) and Schremp v. Schremp, 2000 Tenn. App. Lexis 791 (Tenn. Ct. App. Dec. 7, 2000), the mother’s proposed relocation to be in close proximity to her fiancé whom she planned to marry/husband was not found to be a reasonable purpose for the move. That case law suggest that the term “reasonable purpose” has been interpreted to mean “significant purposes.” See Webster v. Webster, 2006 Tenn. App. Lexis 685 (Tenn. Ct. App. Oct. 24, 2006). 
The Court of Appeals of Tennessee recognized that historically the Tennessee Courts favored relocation and provided the custodial parent with “unfettered authority to move the child away from the non-custodial parent, regardless of the reason or the effect on the child’s relationship with the non-custodial parent.” See Webster v. Webster, 2006Tenn. App. Lexis 685 (Tenn. Ct. App. Oct. 24, 2006). In Webster, the Court of Appeals of Tennessee specifically recognized that as the “value of involving both parties in child-rearing became more widely recognized, Tennessee courts began to hold that the non-custodial parent could prevent relocation of the child under some circumstances if the non-custodial parent could prove that the move was not in the best interests of the child.” Id. at 29.
Webster v. Webster, supra, was overruled by Aragon v. Aragon, 513 S.W. 3d 447 (2017), by the Supreme Court of Tennessee to the extent that the term “reasonable purposes” is no longer interpreted to mean a significant purpose. In Aragon, the Court held that father’s securing of advantageous job in Arizona where family of both parties resided was sufficient grounds to justify having a “reasonable purpose” for the intended relocation.
While the Supreme Court of New Jersey relied upon Taylor v. Taylor, 849 S.W.2d 319 (Tenn. 1993), in deciding Baures v. Lewis, for the concept that Tennessee has a “strong presumption” in favor of relocation, the decisional case law rendered and statute enacted after Taylor evidence that this presumption is no longer “unfettered” and that once the noncustodial parent refutes the presumption favoring relocation, the standard becomes one of a best interest analysis. It is important to note, however, that the recent case law appears to have relaxed the best interest standard. The Bisbing Court cites Aragon for the proportion that the “Bauers standard did not represent a lasting trend in the law.”
Minnesota Places Burden Of Proof On Moving Party
In adjudicating Baures v. Lewis, the Supreme Court of New Jersey also relied upon the Supreme Court of Minnesota’s decision inAuge v. Auge, 334 N.W.2d 393 (Minn. 1983) and Sefkow v. Sefkow, 427 N.W.2d 203 (Minn. 1998) to conclude the Minnesota had a presumption in favor of the custodial parent seeking to relocate whereby the noncustodial parent had the burden to show that the relocation would endanger the child or is meant to frustrate the noncustodial parent’s relationship with the child.
In 2006, the case of Auge v. Auge, was overruled by statute. In 2006, the legislature eliminated the presumption in favor of relocation established in Auge when it amended Minn. Stat. §518.175(3). The Minnesota statute places the burden of proof on the moving party unless the court finds that the moving party has been the victim of domestic abuse at the hands of the opposing party. Id. at §518.175(3)(c). The statute also provides that courts considering removal motions "shall apply a best interest standard," and provides a non-exclusive list of eight best-interests factors. Id. at. §518.175(3)(b), (c) (“[t]he burden of proof is upon the parent requesting to move the residence of the child to another state, except that if the court finds that the person requesting permission to move has been a victim of domestic abuse by the other parent, the burden of proof is upon the parent opposing the move. The court must consider all of the factors in this subdivision in determining the best interests of the child.”). See also Clark v. Clark, 2014 Minn. App. Unpub. Lexis 773 (Minn. Ct. App. July 21, 2014) (recognizing that the case of Auge v. Auge, 334 N.W.2d 313 (Minn. 1983), is no longer the standard applied in removal cases in the Minnesota.).
Pursuant to Minn. Stat. §518.175(3)(b), the factors to be considered by the Court in determining the best interest of the child are as follows:
- the nature, quality, extent of involvement, and duration of the child’s relationship with the person proposing to relocate and with the non-relocating person, siblings, and other significant person’s in the child’s life;
- the age, developmental stage, needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, taking into consideration special needs of the child;
- the feasibility of preserving the relationship between the non-relocating parent and the child through suitable parenting time arrangements, considering the logistics and financial circumstances of the parties;
- the child’s preference, taking into consideration the age and maturity of the child;
- whether there is an established pattern of conduct of the person seeking the relocation either to promote or thwart the relationship of the child and the non-relocating person;
- whether the relocation of the child will enhance the general quality of the life for both the custodial parent seeking to relocate and the child including, but not limited to, financial or emotional benefit or educational opportunity;
- the reasons of each person for seeking or opposing the relocation; and
- the effect on the safety and welfare of the child, or of the parent requesting to move the child’s residence, of domestic abuse, as defined in section 518B.01.
Whereas Minnesota was once a state that had a presumption in favor of relocation, that law too has changed to a best interest analysis. The statute is undoubtedly based in part upon the principle that interruption of the parent-child relationship may be seriously detrimental to the child's psychological development -- a principle which should apply with equal or greater force when the child has already been separated from one parent at the time of a dissolution. See generally J. Goldstein, A. Frend & A. Solnit, Before the Best Interests of the Child 8-11 (1979); Mnookin, Child Custody Adjudication: Judicial Functions in the Face of Indeterminacy , 39 Law & Contemp. Probs. 226, 265 (Summer 1975). In Bisbing, the Court recognized that the Bauers’ Court “invoked ‘the growing trend in law easing restrictions on the custodial parent’s right to relocate with the children and recogzning the identify of interest of the custodial parent and the child.’” Bauers 167 N.J. at 107-09, Bisbing, 230 N.J. at 326.
Wisconsin Continues To Have A Presumption Favoring Relocation
In Baures v. Lewis, the Supreme Court of New Jersey considered the case of Long v. Long, 381 N.W.2d 350 (Wis. 1986) in support of the belief at that time that courts were easing the burden on custodial parents. In Long, the Supreme Court of Wisconsin recognized that a custodial parent will be permitted to relocate if the custodial parent can establish a good reason for the move. The standard for modification or prohibition of a move or relocation in Wisconsin requires the noncustodial parent to file an application objecting to the proposed relocation. The court will then consider the following factors when adjudicating the relocation issue:
- Whether the purpose of the proposed action is reasonable;
- The nature and extend of the child’s relationship with the other parent and the disruption to that relationship with the proposed action may cause; and
- The availability of alternative arrangements to foster and continue the child’s relationship with and access to the other parent.
Wisc. Stat. Ann. §767.481(5) (previously §767.327). Thereafter, if the Court does not find in favor of the relocation, it can then review the matter as a change in physical custody (referred to as physical placement of the child) in which case it will then consider the best interests of the child and whether the move/removal will result in a substantial change of circumstance substantially affecting physical placement of the child. Wisc. Stat. Ann. §767.481(1).
Although the State of Wisconsin appears to have adopted a liberal presumption of relocation, there were two dissenting opinions in Long v. Long, 381 N.W.2d 350 (Wis. 1986) both which recognized the difficult on the noncustodial parent in relocation cases and emphasized that a best interest test was more appropriate than the liberal presumption creating by the statute and affirmed by the majority opinion. One of the dissenting opinions expressed concern about the harm to the child in granting relocation based on social science research.
The view expressed in these dissenting opinions appear to have been adopted in Wisconsin cases decided thereafter. For example, in the case of Frey v. Fischer, 477 N.W.2d 365 (1991), the appellate court affirmed the trial court’s granting of former wife’s application seeking to reject former husband’s proposal to relocate to Massachusetts with the parties’ child. The Court specifically stated “[d]ivorce courts must evaluate the child’s best interests in context with the status and concerns normally involved in change of custody and visitation decisions.” This concept has not yet been used to challenge the current law in Wisconsin recognizing the presumption in favor of relocation.
Evolving Law Of Other Jurisdictions
Supported Change in New Jersey Law on Relocation
The law that was relied upon by the Court in Baures v. Lewis changed. Of the seven states that the Supreme Court of New Jersey viewed as having a presumption in favor of relocation, the law in all of these jurisdictions either changed or hardened, making relocation more difficult in these states. Not only had most of case law relied upon by Baures been overruled or distinguished, but the trend in other states recognize the difficult that relocation poses for the non-custodial parent. More than half of the states in the United States place the burden of proof on the parent seeking to relocate. More than half of the states in the United States do not specifically specify a presumption, while 20% of the states in the United States specifically state that they do not have a presumption in favor of or against relocation. Nearly, 75% of the states in the United States have statutes on the issue of relocation and another 84% of the states consider the best interest of the child as part of the analysis when determining a relocation application. One-fifth of the states in the United States even define relocation based on the number of miles that the child would be moved either from the non-custodial parent’s residence or the child’s prior residence. Approximately one-third of the states in the United States require that the parent seeking to relocate provide a specific amount of notice to the other parent.
Whereas the Supreme Court of New Jersey recognized and adopted a prior liberal trend permitting relocation nearly fifteen years ago, that trend has shifted. While the courts previously examined the relocation from the perspective of the custodial parent and other courts considered the relocation from the perspective of the non-relocating parent, the more recent trend has been for courts to consider the relocation based on the child’s perspective. It is for this reason that a majority of the states focus on the best interests of the child in determining relocation applications. In Bisbing v. Bisbing, 230 N.J. 309, the Supreme Court acknowledged that the anticipated trend presumed from the case law of other jurisdictions which had a presumption favoring relocation never materialized, and the presumption toward relocation shifted to a best interest analysis. After sixteen years of reliance on a trend that had not materialized and/or was reversed, the Supreme Court of New Jersey acknowledged that it was time to “abandon the standard established in Bauers v. Lewis, 167 N.J. 91 in favor of adopting a best interest standard” for evaluating relocation cases.
 Sheryl J. Seiden, Esq. is the founding partner at Seiden Family Law, LLC in Cranford, New Jersey. She is an Officer of the Family Law Section of the New Jersey State Bar Association and is slated to be Chair of the Section in May 2019. Sheryl is also a fellow of the American Academy of Matrimonial Lawyers. She wrote and presented an article entitled “It Is Time To Reexamine Our Relocation Laws,” which was presented at the Family Law Symposium in January 2015.
 In Baures v Lewis, the Supreme Court of New Jersey had addressed the relocation issue. In Cooper v. Cooper, 99 N.J. 42 (1984), the Supreme Court of New Jersey reversed Appellate Division’s reversal of trial Court’s Order granting mother’s application to relocate from New Jersey to California) and in Holder v. Polanski, 111 N.J. 344 (1988), the Supreme Court of New Jersey reversed and remanded Appellate Division’s denial of mother’s request to relocate from New Jersey to Connecticut.
 Baures v. Lewis , 167 N.J. 91, 105 (2001). See also Edwin J. Terry et al., Relocation: Moving Forward or Moving Backward? , 31 Tex. Tech. L. Rev. 983, 986 (2000).
 See Baures , 167 N.J. at 105. See also Chris Ford, Untying the Relocation Knot: Recent Developments and a Model For Change , 7 Colum. J. Gender & L. 1, 7 (1997). While historically courts were reluctant to permit out of state removal for fear of losing jurisdiction, this is no longer a concern as all fifty states and the District of Columbia have adopted the Uniform Child Custody Jurisdiction Act which addresses these jurisdictional issues.
 In Fortin, the Supreme Court in South Dakota noted that under S. D. Codified Laws §25-5-13 , a custodial parent had the right to change the residency of the child unless such removal would be adverse to the child. The Court found that the evidence had shown that: (1) in order to make the transition smooth for the child the mother would not work outside the home for a year; (2) she had no desire to frustrate or defeat the father's visitation; (3) since the divorce she had made sure that the father had very liberal visitation with the child; (4) she offered to share the transportation costs; and (5) the father had consented to give her sole custody and did not seek custody even after becoming apprised of the mother's intent to take the child out of state. In concluding that the best interests of the child prevailed over the father's privilege of visitation, the court granted the mother’s application seeking to relocate with the parties’ child.
 In Clark v. Clark, 2003 Tenn. App. Lexis 926 (Tenn. Ct. App. Dec. 30, 2003), the appellate division affirmed the trial court’s order permitting mother to relocate to be in close proximity with her fiancé who was long settled in Virginia where the mother evidenced an ability to think clearly about her plan and prepare for its consequences, and in Webster v. Webster, 2006 Tenn. App. Lexis 685 (Tenn. Ct. App. 2006), the Court of Appeals reversed the trial court’s decision to relocate with the parties’ children to Canada to marry a Canadian citizen was deemed to be a reasonable purpose where the mother’s further husband had strong ties to the new intended location.