Are Non-Relocation Clauses in Divorce Agreements Enforceable?
Charles F. Vuotto, Jr., Esq.
New Jersey divorce lawyer
Charles F. Vuotto, Jr., Esq.
Can parties agree to provisions barring a custodial parent from relocating with his or her child out of the state? This question has just been answered by the Appellate Division in the unreported decision of Bisbing v. Bisbing. In Bisbing the parties’ Marital Settlement Agreement (“MSA”) provided that the wife (“Jaime”) would have primary residential custody of their twin girls born in November 2006. The court found that the primary residential custody provision was conditioned upon Jaime not relocating out of state. Nine months after the divorce, Jaime called her former husband, Glenn, to notify him of her intention to marry a Utah resident and relocate to that state notwithstanding the provision in their MSA stating, “neither party shall permanently relocate with the children from the state of New Jersey without the prior written consent of the other.” Glenn refused to grant permission to Jaime to relocate to Utah with the children. Eleven months after the divorce, Jaime filed a motion seeking to relocate with the children to Utah without the need for a plenary hearing.
On April 24, 2015 the trial court granted the motion allowing relocation without holding a plenary hearing on the condition that a visitation schedule be established through mediation. On July 14, 2015, after an unsuccessful mediation, and with only Jaime suggesting a parenting plan, the court issued a supplemental order establishing a parenting time and communication schedule. The trial court used most of Jaime’s suggestions. Eleven days later, she and the children “left for a vacation to Utah.” Three days thereafter, Jaime permanently relocated with the children to Utah.
Glenn appealed the trial court’s decision. The Appellate Division reversed and remanded for a plenary hearing with the following instructions:
We reverse and remand for a plenary hearing to determine first whether Jaime negotiated the MSA in bad faith. If so, a "best interests of the child" analysis must be conducted. Second, if bad faith is not demonstrated, the trial court must then consider whether Jaime proved a substantial unanticipated change in circumstances warranting avoidance of the agreed-upon non-relocation provision and simultaneously necessitating a Baures analysis. If the MSA was negotiated in good faith, yet Jaime fails to satisfy her burden of proving a substantial unanticipated change in circumstances, the court must apply the same "best interests" analysis as required in the first step. Only if Glenn is unable to demonstrate that Jamie negotiated the MSA in bad faith and Jamie proves a substantial unanticipated change in circumstances occurred should she be accorded the benefit of the Baures analysis.
Based on this decision, it appears that even if a custodial parent negotiates an MSA in bad faith, he or she can potentially avoid the anti-removal provision contained therein if that party can show that it is in the children’s best interest to move. The Appellate Division then stated:
If Jaime is unable to demonstrate an unanticipated substantial change in circumstances, even if she negotiated the MSA in good faith, the family court must apply the ‘best interests’ standard to determine removal. If Jaime's remarriage was anticipated, or should have been anticipated, then Glenn should be able to rely on the non-relocation provision.
This language suggests that unless the changed circumstances (i.e., Jaime’s remarriage to a man living out of state) was contemplated, the anti-removal provision would not be enforced as Glenn had likely intended.
Although there are hurdles to overcome, a custodial parent seeking to relocate from the state with children may be able to do so notwithstanding a non-relocation clause in an agreement. The custodial parent can still enjoy the advantages of the Baures analysis (which favors relocation) even where the parties’ agreement contains a non-relocation provision, provided that custodial parent is free of bad faith and proves a substantial unanticipated change in circumstances. Therefore, it appears that in circumstances involving agreements with language similar to the language of the MSA in Bisbing, the non-custodial parent cannot rely on that language as constituting an absolute bar to relocation.
The Appellate Division in Bisbing noted the late Justice Schreiber’s concurrence in Cooper v. Cooper wherein he stated that “[s]ubstantial deference is to be accorded to parents’ mutually-agreed-upon decisions with respect to custody and visitation,” including “the parents’ agreement regarding the physical situs of the children.” However, it does not appear that the Bisbing decision is in accord with these sentiments. Barring a finding of harm to the children, why didn’t the court simply enforce the parties’ MSA? Why did the court give benefits to the custodial parent that she had clearly bargained away?
N.J.S.A. 9:2-2 states that children of divorced parents shall not be removed from the Superior Court’s jurisdiction “without the consent of both parents, unless the court, upon cause shown, shall otherwise order.” However, the parties’ MSA simply stated that, “neither party shall permanently relocate the children from the state of New Jersey without the prior written consent of the other.” There was no additional language in this provision, such as the clause “unless the court, upon good cause shown, shall otherwise order.” As such, shouldn’t Mr. Bisbing have been able to rely on that provision as an absolute bar to his ex-wife’s removal of the children from the State of New Jersey (except, of course, upon a showing of harm to the child )? According to the Bisbing decision, he could not. The very best he could hope for (with one narrow exception) was an analysis under the best interest standard rather than the more lenient Baures standard.
This author wonders why the wife is entitled to a plenary hearing even at the higher “best interest” standard given that she agreed to a non-relocation term. There were no provisions to permit the court to override that term under any standard, whether it is analyzed under the best interests or Bauresstandard.
The Appellate Division also noted that if the trial level on remand finds that the wife negotiated in good faith, without manipulative intent, the court must still consider the impact of the carefully considered non-relocation provision. Why did the Appellate court phrase this as considering the “impact” of the provision? Why not enforce the term agreed to between the parties? The court cites many cases adopting the state’s public policy favoring the use of consensual agreements to resolve marital controversies. What is different here? The Appellate Division states that “consensual settlement agreements are subject to the changed circumstances” doctrine. However, the Appellate Division also acknowledges that the wife, in a written and voluntarily agreed-upon contract, specifically surrendered her “freedom to seek a better life” in another state while obtaining primary custody of the children, and was well aware of that agreement when she chose to remarry and move far away.” If so, this author wonders why that term was not enforced. It seems that the court is acknowledging the contractual term that does not give the wife any avenue to relocate out of state with the children (without the husband’s consent), while simultaneously (and seemingly contradictorily) granting a plenary hearing that potentially obviates that contractual term. The parties’ MSA did state that, “in the event a job would necessitate a move, the parties agreed to discuss this together and neither will make a unilateral decision.” That suggests that the bar against removal had one exception in the event of a change of employment. However, that was not the reason that the wife in Bisbing was moving. She was moving because she married a man who lived in Utah. The Bisbing Appellate Division acknowledged this fact when it stated, “remarriage, however, was not mentioned in the agreement. Perhaps testimony would reveal whether such an eventuality was considered.” The MSA was not ambiguous in anyway. There were no missing terms. Why would the Appellate Division permit testimony (and presumably parole evidence) to interpret what appeared to be unambiguous terms of an MSA?
Therefore, it appears that Bisbing stands for the proposition that an unambiguous non-relocation provision cannot be relied upon by a non-custodial parent and is subject to not being enforced due to unanticipated and substantial changes in circumstance, which will trigger, at the very least, a “best interest” analysis (and perhaps a Baures analysis) to determine whether removal should be permitted. It appears that the husband in Bisbing was only permitted to rely on the non-relocation provision if the wife’s remarriage was anticipated, or should have been anticipated. This does not seem fair. The Bisbing court concludes “the non-relocation provision should be enforced to the limited extent of modifying the usual, preferential treatment accorded the primary caretaker’s good faith desire to relocate.” Why impose that limitation? Why write that provision into the parties’ MSA?
In light of the foregoing, it appears to this writer that the only conclusion one can reach is that a non-custodial parent (and his/her counsel) should be very wary of the enforceability of a non-relocation clause in a MSA. As such, a client should be advised of the potential that said clause may not be enforced (or enforced differently than contemplated). Additionally, it may be prudent to provide that client with a copy of the Bisbing decision and to include language in the divorce agreement that the parties have been advised of the Bisbing decision and expressly instruct any future court to strictly enforce the non-relocation provisions of their agreement. Such a provision should improve (but may not guarantee) the enforcement of the parties’ agreement.
From the four corners of the decision, it does not appear that the parties’ MSA expressly made this statement. This appears to be a conclusion reached by the court based upon the anti-removal language contained within the MSA.
Baures v. Lewis, 167 N.J. 91 (2001) is the seminal case on removal of children from the State of New Jersey after a custody determination has been made. Pursuant to Baures’ two-pronged inquiry, the moving party has the burden of proving by a preponderance of the credible evidence that “(1) there is a good faith reason for the move and (2) that the move will not be inimical to the child’s best interest.” Id. at 118. To determine whether to order removal, a court must assess “12 factors relevant to the plaintiff’s burden of proving good faith and that the move will not be inimical to the children’s best interest.” Id. at 116-17. The initial burden on the movant “is not a particularly onerous one.” Id. at 118. Once the moving party makes a prima facie showing, the burden shifts to the non-moving party to “produce evidence opposing the move as either not in good faith or inimical to the children’s best interest.” Id. at 119.
F. Vuotto, Jr.
is a shareholder with the Woodbridge based law firm of Wilentz, Goldman &
Spitzer. He has been practicing
since 1986 and has limited his practice to matrimonial law. Mr. Vuotto is certified by the Supreme Court of the State of
New Jersey as a Matrimonial Attorney and serves on the Executive Committee of
the Family Law Section of the New Jersey State Bar Association.
He routinely writes and lectures on family law.
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