The vast majority of family law cases settle before going to trial. In order to settle a case, both parties must negotiate in good faith and both parties and their lawyers must provide adequate disclosure to the other party. If it is later found out that one of the parties was not forthcoming, the other party has the right to go back to court to ask for the agreement to be modified or even overturned. There are times, however, when a court could even go a step further and change the law underlying the dispute. That is what happened in the case of Bisbing v. Bisbing.
In New Jersey, prior to the court’s decision in Bisbing, a custodial parent who wanted to relocate out of state over the objection of the non-custodial parent could do so if they could “show good faith in the move and that the move would not be inimical [harmful] to the interests of the children to do so.” This is called the Baures standard after the case Baures v. Lewis, 167 N.J. 91, 118-20 (2001). After Bisbing, the court increased the burden of proof and now a custodial parent may relocate out of the state only if the move is in the “best interest of the child.”
In Bisbing, the parties, Glenn and Jaime Bisbing were married in 2005 and were the parents of 8-year-old twin girls born in November 2006. Jaime, the mother of the girls, was the higher wage earner. Jaime later filed for divorce, and in March 2014, the parties entered into a settlement agreement. Prior to the divorce, Jaime began a long-distance relationship with a man who lived in Utah. Soon after the divorce, Jaime stopped working to become a stay-at-home mom. In early January 2015, Jaime informed Glenn that she was going to remarry and move to Utah. Glenn told Jaime that she could not take the children to Utah and Jaime filed a motion with the Superior Court for permission to relocate. The Superior Court, New Jersey’s trial court, without holding a hearing, allowed the move. Glenn appealed the decision to the Appellate Division of the Superior Court. Glenn argued that Jaime negotiated the agreement in bad faith because she knew that she was going to move to Utah, she knew that Glenn would object to the relocation and if Glenn would have known about Jaime’s intentions he would not have agreed for Jaime to be the parent of primary residence which afforded her the benefit of the lower burden of proof under the Baures standard.
The Appellate Division instructed the Superior Court to hold a hearing to determine whether Jaime negotiated the agreement in bad faith. If the court found that she did indeed negotiate the agreement knowing full well that she intended to relocate to Utah after the divorce, then the court had to apply the more stringent best interest test.
However, Jaime then appealed the Appellate Division’s decision to New Jersey’s Supreme Court. The Supreme Court modified the Appellate Division’s ruling by overruling the Baures standard. The court held that, from now on, the best interest test must be applied in all interstate relocation disputes. The Supreme Court then sent the case back to the Superior Court to hold a hearing using the best interest test.
The lesson to be learned here is that there is always a risk in having a court decide your contractual disputes. Courts sometimes later change the law that existed at the time you entered into the agreement if, in their view, the existing law no longer meets the state’s policy considerations.