                                                      SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

                       Jaime Taormina Bisbing v. Glenn R. Bisbing, III (A-2-16) (077533)

Argued March 29, 2017 -- Decided August 8, 2017

PATTERSON, J., writing for the Court.

          In this appeal, the Court addresses the showing necessary to establish “cause” under N.J.S.A. 9:2-2 for the
entry of an order authorizing a parent to permanently relocate out of state with his or her child, despite the other
parent’s opposition to the child’s interstate move.

          Following their separation, plaintiff Jaime Taormina Bisbing and defendant Glenn R. Bisbing, III, agreed
on the terms of a Marital Settlement Agreement (Agreement), which they executed on March 8, 2014. With respect
to their twin daughters, the Agreement provided that plaintiff would have primary residential custody. It also
included a relocation provision, stating, in part, that “[n]either party shall permanently relocate with the Children
from the State of New Jersey without the prior written consent of the other.” On April 16, 2014, the trial court
entered a judgment of divorce, incorporating the terms of the Agreement. On January 8, 2015, plaintiff informed
defendant that she intended to marry Jake Fackrell, a Utah resident whom she had begun dating prior to the parties’
divorce. Plaintiff asked defendant to consent to the permanent relocation of the children to Utah. Defendant replied
that plaintiff was free to move to Utah, but that the children must remain in New Jersey with him.

         Plaintiff filed a motion pursuant to N.J.S.A. 9:2-2, seeking an order permitting her to permanently relocate
the children to Utah. Defendant contended that plaintiff had negotiated the Agreement in bad faith, securing his
consent to her designation as parent of primary residence without informing him that she contemplated relocating.
Without holding a plenary hearing, the trial court applied the standard established in Baures v. Lewis, 167 N.J. 91,
118-20 (2001): A parent with primary custody seeking to relocate children out of state over the objection of the
other parent must demonstrate only that there is a good-faith reason for an interstate move and that it “will not be
inimical to the child’s interests.” The court granted plaintiff’s application for relocation, explaining that she
presented a good-faith reason and that the move would not be inimical to the children’s interests. Plaintiff moved
with the children to Utah and enrolled them in an elementary school.

          The Appellate Division reversed and remanded for a plenary hearing. 445 N.J. Super. 207 (App. Div.
2016). The panel found that there was a genuine issue of material fact as to whether plaintiff negotiated the custody
provisions of the Agreement in good faith. It ruled that if the trial court concluded that she had acted in bad faith, it
should resolve the relocation motion using the best interests standard instead of the more lenient “not . . . inimical to
the child’s interests” standard of Baures. The panel held that if defendant failed to prove plaintiff’s bad faith, the
trial court would then determine whether plaintiff proved a substantial and unanticipated change in circumstances
that would permit her to avoid the Agreement’s relocation provision. The panel directed the trial court to apply the
best interests of the child standard if plaintiff failed to prove a substantial and unanticipated change.

         Following the panel’s decision, plaintiff returned with her children to New Jersey. The trial court denied
her motion for a stay and ordered the parties to abide by the residency provisions in the Agreement. The Court
granted plaintiff’s petition for certification. 227 N.J. 262 (2016).

HELD: The Court recognizes a “special justification” to abandon the standard it established in Baures v. Lewis,
167 N.J. 91 (2001) for determining the outcome of contested relocation determinations pursuant to N.J.S.A. 9:2-2.
In place of the Baures standard, courts should conduct a best interests analysis to determine “cause” under N.J.S.A.
9:2-2 in all contested relocation disputes in which the parents share legal custody.

1. New Jersey’s custody statute was enacted to further the public policy “to assure minor children of frequent and
continuing contact with both parents after” separation or divorce. N.J.S.A. 9:2-4. The Legislature provided that
“[i]n any proceeding involving the custody of a minor child, the rights of both parents shall be equal,” ibid., and
prescribed a non-exclusive list of factors to guide a court charged to determine the custody arrangement that most
effectively serves the child’s best interests. A custody arrangement adopted by the trial court is subject to
modification based on a showing of changed circumstances, with the court determining custody in accordance with
the best interests standard of N.J.S.A. 9:2-4. (pp. 15-18)
2. N.J.S.A. 9:2-2 requires a showing of “cause” before a court will authorize the permanent removal of a child to
another state without the consent of both parties. In Baures, the Court held that in the shared-custody setting, the
trial court should treat the relocation application as “governed initially by a changed circumstances inquiry and
ultimately by a simple best interests analysis.” Id. at 116. But if the parent seeking removal is the custodial parent,
that parent would establish “cause” under N.J.S.A. 9:2-2 if he or she proved good faith and that the move would not
be inimical to the child’s interest. The Court identified two developments in support of its alteration of the
governing standard for N.J.S.A. 9:2-2 relocation applications: (1) social science research indicated that when a
relocation benefits a “custodial parent,” it will similarly benefit the child; and (2) the growing trend in the law easing
restrictions on the custodial parent’s right to relocate with the children. Because the parties’ custodial arrangement
is potentially dispositive when a court determines whether to authorize relocation under Baures, a collateral dispute
regarding the parties’ good faith in their custody negotiations may arise. In such cases, the Appellate Division has
held that the best interests standard would apply rather than the Baures standard. (pp. 18-25)

3. In considering whether to retain the Baures standard as the benchmark for contested relocation determinations,
the Court recognizes that it has always required a departure from precedent to be supported by some special
justification. Such justification might be found when experience teaches that a rule of law has not achieved its
intended result. (pp. 25-26)

4. In deciding Baures, the Court did not intend to either diverge from the best interests standard at the core of the
custody statute or circumvent the legislative policy giving parents equal rights in custody proceedings. Instead, the
Court created the two-pronged “good faith” and “not . . . inimical to the child” test based on social science research
and trends in the law. Since the Baures decision, however, the vigorous scholarly debate among social scientists
who have studied the impact of relocation on children following divorce reveals that relocation may affect children
in many different ways. Moreover, the progression in the law toward recognition of a custodial parent’s
presumptive right to relocate with children, anticipated by this Court in Baures, has not materialized. Today, the
majority of states impose a best interests test when considering a relocation application filed by a custodial parent;
some have recently abandoned the presumption in favor of that parent. The standard adopted in Baures did not
represent a lasting trend in the law. Moreover, by tethering the relocation standard to one party’s status as the
custodial parent, the Baures standard may generate unnecessary disputes regarding that designation. Accordingly,
the Court recognizes a “special justification” in this case to abandon that standard. (pp. 26-35)

5. In place of the Baures standard, courts should conduct a best interests analysis to determine “cause” under
N.J.S.A. 9:2-2 in all contested relocation disputes in which the parents share legal custody—whether the custody
arrangement designates a parent of primary residence and a parent of alternate residence, or provides for equally
shared custody. A number of the statutory best interests factors will be directly relevant in typical relocation
decisions, and additional factors not set forth in the statute may also be considered in a given case. Contrary to
plaintiff’s contention, the relocation constraints imposed by N.J.S.A. 9:2-2 do not infringe on the relocating parent’s
constitutional right to interstate travel. (pp. 35-39)

6. The Court remands to the trial court for a plenary hearing to determine whether the custody arrangement set forth
in the parties’ Agreement should be modified to permit the relocation of their daughters to Utah. It does not agree
with defendant’s assertion that by consenting to the interstate relocation provision of the Agreement, plaintiff
waived her right to a judicial determination of her relocation application under N.J.S.A. 9:2-2. However, plaintiff
must demonstrate changed circumstances to justify modification of the Agreement, and, because the relocation is
permanent, she must demonstrate that there is “cause” for an order authorizing it. In that inquiry, “cause” should be
determined by a best interests analysis in which the court will consider all relevant factors set forth in N.J.S.A. 9:2-
4(c), supplemented by other factors as appropriate. Because the best interests standard applies to the determination
of “cause” notwithstanding plaintiff’s designation as the parent of primary residence, the court need not decide
whether plaintiff negotiated the parties’ Agreement in bad faith. (pp. 39-41)

          The judgment of the Appellate Division is MODIFIED and AFFIRMED, and the matter is REMANDED
to the trial court for proceedings in accordance with this opinion.

     CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, FERNANDEZ-VINA,
SOLOMON, and TIMPONE join in JUSTICE PATTERSON’s opinion.




                                                            2
                                       SUPREME COURT OF NEW JERSEY
                                          A-2 September Term 2016
                                                  077533

JAIME TAORMINA BISBING,

    Plaintiff-Appellant,

         v.

GLENN R. BISBING, III,

    Defendant-Respondent.


         Argued March 29, 2017 – Decided August 8, 2017

         On certification to the Superior Court,
         Appellate Division.

         Paul H. Townsend argued the cause for
         appellant (Townsend, Tomaio & Newmark,
         attorneys; Paul H. Townsend, of counsel and
         on the brief; Valerie R. Wane, on the
         brief).

         Matheu D. Nunn argued the cause for
         respondent (Einhorn, Harris, Ascher,
         Barbarito & Frost, attorneys).

         Timothy F. McGoughran argued the cause for
         amicus curiae New Jersey State Bar
         Association (Thomas H. Prol, President, of
         counsel; Timothy F. McGoughran, Brian G.
         Paul, Derek M. Freed, and Albertina Webb, on
         the brief).

    JUSTICE PATTERSON delivered the opinion of the Court.

    This appeal arises from a trial court’s post-judgment

determination authorizing a mother to permanently relocate with

her children out of state, notwithstanding their father’s

objection to the children’s move.   It requires that we address

                                1
the showing necessary to establish “cause” under N.J.S.A. 9:2-2

for the entry of an order authorizing a parent to relocate out

of state with his or her child, despite the other parent’s

opposition to the child’s interstate move.

    Plaintiff Jaime Taormina Bisbing and defendant Glenn R.

Bisbing, III, divorced when their twin daughters were seven

years old.   Their judgment of divorce incorporated their

settlement agreement that plaintiff would be the parent of

primary residence and defendant would be the parent of alternate

residence.   It provided that neither party would permanently

relocate out of state with the children without the prior

written consent of the other.     Several months after the parties’

divorce, plaintiff advised defendant that she intended to marry

the man whom she had been dating, a resident of Utah, and sought

an order permitting her to move the children to that state.

    The trial court applied the standard set forth in this

Court’s decision in Baures v. Lewis, 167 N.J. 91, 118-20 (2001).

Under Baures, a parent with primary custody seeking to relocate

children out of state over the objection of the other parent

must demonstrate only that there is a good-faith reason for an

interstate move and that the relocation “will not be inimical to

the child’s interests.”   Ibid.   The trial court found that

plaintiff sought to relocate for a good-faith reason and that

the relocation would not be inimical to the interests of the

                                  2
parties’ daughters.   The trial court authorized the children’s

relocation to Utah, conditioned on an agreement allowing

defendant scheduled visitation and regular communication with

his daughters following the move.

    Defendant appealed, and an Appellate Division panel

reversed the trial court’s judgment.    The panel held that if

defendant were to make a showing on remand that plaintiff had

negotiated the parties’ custody agreement in bad faith, the

trial court should not apply the “inimical to the child’s

interest” standard of Baures but should instead determine

whether relocation would be in the best interests of the child.

The panel thus imposed on a plaintiff who has negotiated a

custody arrangement in bad faith a higher burden of proof on the

question of “cause” under N.J.S.A. 9:2-2 than the burden imposed

under Baures.    We granted plaintiff’s petition for

certification.

    We affirm and modify the Appellate Division’s judgment.       We

depart from the two-part test that Baures prescribed for a

relocation application brought by a parent of primary residence.

We apply the same standard to all interstate relocation disputes

under N.J.S.A. 9:2-2 in which the parents share legal custody --

cases in which one parent is designated as the parent of primary

residence and the other is designated as the parent of alternate

residence and cases in which custody is equally shared.    In all

                                  3
such disputes, the trial court should decide whether there is

“cause” under N.J.S.A. 9:2-2 to authorize a child’s relocation

out of state by weighing the factors set forth in N.J.S.A. 9:2-

4, and other relevant considerations, and determining whether

the relocation is in the child’s best interests.

    Accordingly, we modify and affirm the Appellate Division’s

judgment and remand to the trial court for a plenary hearing to

determine whether the proposed relocation of the parties’

daughters to Utah is in the children’s best interests.

                                 I.

    Plaintiff and defendant were married on August 27, 2005.

Their twin daughters were born on November 17, 2006.

    The family lived in Stanhope, near the parties’ respective

families in Pennsylvania.   The children’s grandmothers assisted

with child care while plaintiff and defendant worked.    Both

parties were employed outside of the home during the marriage.

Plaintiff commuted to New York City for her job, and defendant

worked in New Jersey.

    In 2013, after eight years of marriage, plaintiff and

defendant separated.    Without legal counsel, but with the

assistance of a mediator, they agreed on the terms of the

Marital Settlement Agreement (Agreement).   They executed that

Agreement on March 8, 2014.



                                 4
     The parties’ Agreement provided that they would share

“joint legal custody, with primary residential custody being

with the mother, of the un-emancipated [c]hildren born of the

marriage,” and that plaintiff “shall be the custodial parent.”1

It stated that the children would stay with defendant every

other weekend and one weeknight every other week.   The parties

agreed on a parenting schedule for holidays, acknowledged that

they both were entitled to attend all of their children’s

events, and granted one another a right of first refusal if one

parent were unable to care for the children during parenting

time reserved for that parent.




1  In this opinion, we use the terms “parent of primary
residence” and “parent of alternate residence,” rather than the
terms “custodial parent” and “noncustodial parent,” to describe
the parties’ respective parenting roles under their Agreement.
See Fall & Romanowski, Child Custody, Protection & Support §
21:2-1(c) (2017) (“Use of the antithetical designations
‘custodial’ or ‘noncustodial’ parent and ‘sole’ or ‘joint’
physical custody should be avoided in favor of terms that more
accurately describe the joint parenting arrangement that is
preferred and typically exercised today.”). The Child Support
Guidelines use the term “parent of primary residence” to denote
“[t]he parent with whom the child spends most of his or her
overnight time,” or “[i]f the time spent with each parent is
equal . . . the parent with whom the child resides while
attending school.” Child Support Guidelines, Pressler &
Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at
www.gannlaw.com (2017); Fall & Romanowski, supra, Appendix IX-A
at 1073-74. The Guidelines use the term “parent of alternate
residence” to denote “the parent with whom the child resides
when not living in the primary residence.” Child Support
Guidelines, Pressler & Verniero, supra, Appendix IX-A to R. 5:6A
at www.gannlaw.com; Fall & Romanowski, supra, Appendix IX-A at
1073-74.
                                 5
    The Agreement included a provision addressing any future

disputes regarding the relocation of the children:

         Relocation. The parties agree that each shall
         inform the other with respect to any change of
         residence concerning himself or herself or the
         said minor Children for the period of time
         wherein any provision contained in this
         Agreement remains unfulfilled.    The parties
         represent that they both will make every
         effort to remain in close proximity, within a
         fifteen (15) minute drive from the other.
         Neither party shall permanently relocate with
         the Children from the State of New Jersey
         without the prior written consent of the
         other.     Neither   parent   shall   relocate
         intrastate further than 20 miles from the
         other party.     In the event either party
         relocates more than 20 miles from the other
         party, the parties agree to return to
         mediation to review the custody arrangement.
         In the event a job would necessitate a move,
         the parties agree to discuss this together and
         neither will make a unilateral decision.
         Neither party shall travel with the minor
         Children out of the United States without the
         prior written consent of the other party.

         The parties hereby acknowledge that the
         Children’s quality of life and style of life
         are provided equally by Husband and Wife.

         The parties hereby acknowledge a direct causal
         connection between the frequency and duration
         of the Children’s contact with both parties
         and the quality of the relationship of the
         Children and each party.

         The parties hereby acknowledge that any
         proposed move that relocates the Children
         further away from either party may have a
         detrimental impact upon the frequency and
         duration of the contact between the Children
         and the non-moving party.

         [(emphasis added).]

                                6
    On April 16, 2014, the trial court entered a judgment of

divorce, incorporating the terms of the parties’ Agreement.

    In the months that followed their divorce, plaintiff and

defendant lived near one another and cooperated in the care of

their children.   Defendant was not restricted to the parenting

time prescribed by the Agreement -- his alternate-weekend time

with the children often extended until Monday morning, and the

children frequently stayed overnight at his home after their

scheduled weekday evening visit.      The record indicates that

during this initial post-judgment period, the parties sent one

another cordial and cooperative e-mails regarding their

children’s schedules.

    Plaintiff took primary responsibility for the girls’ school

and extracurricular activities.       Defendant was also extensively

involved in his daughters’ lives.      He served as their soccer

coach, assisted with their ski team, and oversaw their

activities at church.   Because plaintiff departed for her job in

New York City early in the morning, defendant went to her home

several mornings each week to assist the children as they

prepared for school.

    Sometime prior to the entry of the judgment of divorce,

plaintiff began dating Jake Fackrell, a Utah resident who

operated a business in Idaho.   The parties dispute whether

plaintiff told defendant that her relationship with Fackrell was

                                  7
serious before defendant agreed that plaintiff would be

designated as the parent of primary residence.     Plaintiff

contends that she candidly discussed the fact that she was

dating Fackrell with defendant prior to executing their

Agreement; defendant asserts that plaintiff did not inform him

that her relationship with Fackrell was serious until the

divorce proceedings were concluded.

    Effective July 1, 2014, plaintiff resigned from her

employment.   She later told the trial court that she left her

job to spend more time with her daughters and that Fackrell had

begun to support her financially.     Plaintiff stated that she

brought her daughters on trips to visit Fackrell and his

children in Utah and that the children enjoyed their time in

Utah.

    According to defendant, following her resignation from her

job, plaintiff restricted defendant’s parenting time to the

precise terms of the parties’ Agreement and limited his family’s

access to the children.

    On January 8, 2015, plaintiff told defendant that she

intended to marry Fackrell and move to Utah.     Plaintiff and

Fackrell were married on June 29, 2015.

    Plaintiff asked defendant to consent to the permanent

relocation of the children to Utah.     Defendant replied that

plaintiff was free to move to Utah, but that the children must

                                 8
remain in New Jersey with him.    Plaintiff contends that

following her request for permission to move the children,

defendant refused to engage in meaningful conversations about

her proposed move or the parties’ parenting time.

    Each party retained counsel to negotiate a settlement, but

they were unable to resolve their dispute.

                                 II.

    Plaintiff filed a motion pursuant to N.J.S.A. 9:2-2.      She

sought an order permitting her to permanently relocate the

children to Utah or, in the alternative, authorizing their

temporary move to Utah pending a plenary hearing.    Plaintiff

offered to negotiate a schedule for defendant’s visitation and

communication with the children after their move.

    In support of her motion, plaintiff filed a certification

stating that she planned to marry Fackrell and that his business

interests precluded him from moving to New Jersey.    She told the

trial court that the children disliked their school in New

Jersey and would have better educational opportunities in Utah.

Plaintiff assured the court that after the children’s departure

for Utah defendant would still be afforded regular visitation

with the children in New Jersey and Utah, as well as the

opportunity to communicate with them on a daily basis by

telephone and various forms of electronic communication.     She

argued that under the Baures standard, the relocation would not

                                 9
be inimical to the children’s interests because it would enable

her to stay home with the children instead of returning to work

and it would benefit the children to have a stay-at-home parent.

    Defendant contended that plaintiff had negotiated the

parties’ Agreement in bad faith and sought the opportunity to

prove that claim at a plenary hearing.   Defendant argued that

plaintiff secured his consent to her designation as parent of

primary residence without informing him that she contemplated

relocating to Utah in order to gain an advantage under the

Baures standard.   He asserted that the relocation would make it

impossible for him to maintain a full and continuous

relationship with his daughters and that electronic

communications would not serve as a substitute for the time that

he would spend with them were they to remain in New Jersey.

    Applying the Baures test without conducting a plenary

hearing, the trial court determined that plaintiff presented a

good-faith reason for her planned relocation and that the move

would not be inimical to the children’s interests.    The court

acknowledged that the children’s move to Utah would reduce the

time spent with their father but suggested that a visitation

plan would facilitate a strong, consistent relationship between

defendant and his daughters.

    The trial court granted plaintiff’s application for an

order permitting her to relocate the children to Utah,

                                10
conditioned on the parties’ agreement on a visitation plan.    The

court denied defendant’s motion to stay its order.    The parties

discussed a visitation plan but were unable to reach an

agreement on that issue.

     Noting that it had directed both parties to propose

visitation plans and that defendant failed to submit a proposal,

the trial court decided on a visitation schedule substantially

based on plaintiff’s proposal.2    The trial court entered a final

order permitting relocation of the children and establishing a

visitation schedule; the court declined to stay that order.

     Plaintiff moved with the children to Utah and enrolled them

in an elementary school.

     Defendant appealed the trial court’s order.3    An Appellate

Division panel reversed the trial court’s determination and

remanded to the trial court for a plenary hearing.    Bisbing v.


2  Under that schedule, the children would visit defendant in New
Jersey for seven weeks each summer; during their fall, winter
and spring school breaks; and every other Thanksgiving.
Defendant would have the right to visit the children in Utah for
five days per month on thirty days’ notice to plaintiff, to
“have daily phone contact with [the] children as well as the
opportunity to FaceTime, Skype, or any other form of video
communication on a daily basis” and to read them “a bedtime
story once per week via video communication.”

3  Prior to the trial court’s entry of its order on relocation
and visitation, defendant sought to appeal the court’s
determination on relocation as of right pursuant to Rule 2:2-
3(a). His notice of appeal was dismissed because the trial
court had not entered a final order resolving all issues in the
matter.
                                  11
Bisbing, 445 N.J. Super. 207, 220 (App. Div. 2016).    The panel

noted that the first inquiry under Baures -- the inquiry that

determines the governing standard -- is whether the parents have

agreed on a custodial relationship in which one parent has

primary custody and the other serves a secondary custodial role.

Id. at 215 (citing Baures, supra, 167 N.J. at 116-19, 122;

O’Connor v. O’Connor, 349 N.J. Super. 381, 385 (App. Div.

2002)).   The Appellate Division panel then found that there was

a genuine issue of material fact as to whether plaintiff

negotiated the custody provisions of the Agreement in good

faith, due to her ongoing relationship with Fackrell when the

parties’ Agreement was signed, her decision to leave her job

shortly after the parties’ divorce, and her application to

relocate the children, which she filed only four months after

the parties agreed that she would serve as the parent of primary

residence.   Id. at 216-17.

    The panel ruled that if the trial court concluded that

plaintiff had acted in bad faith, then plaintiff’s motion for an

order of relocation should be resolved under a best interests

standard, instead of the more lenient “not . . . inimical to the

child’s interests” standard of Baures.   Id. at 215.   It held

that if defendant failed to prove plaintiff’s bad faith on

remand, the trial court would then determine whether plaintiff

proved a substantial and unanticipated change in circumstances

                                12
that would permit her to avoid the Agreement’s relocation

restriction.   Id. at 218-19.   The panel directed the trial court

to apply the best interests of the child standard to the

relocation request if plaintiff failed to prove a substantial

and unanticipated change in circumstances.    Id. at 219.

     Following the Appellate Division’s decision, plaintiff

returned with her children to New Jersey.    The trial court

denied plaintiff’s motion for a stay of the Appellate Division’s

order and her application for permission to temporarily relocate

the children to Utah so that they could return to their school

in that state.   The trial court ordered that “neither party

shall reside with the minor children more than 15 minutes away

from the other parent,” as set forth in the Agreement.      With

defendant’s consent, plaintiff moved with the children to her

parents’ home in Pennsylvania, close to the border between New

Jersey and Pennsylvania.

     We granted plaintiff’s petition for certification.     227

N.J. 262 (2016).4   We also granted the application of the New

Jersey State Bar Association to appear as amicus curiae.


4  After her return with the parties’ children to New Jersey,
plaintiff did not send the children to school but initially
home-schooled them and then hired a tutor. The trial court
commenced a plenary hearing to determine how the children would
be educated, but suspended that hearing following this Court’s
grant of certification on the issue of relocation. Both parties
filed emergent applications to this Court seeking a
determination of their dispute over the children’s education.
                                 13
                                III.

    Plaintiff argues that the Appellate Division panel

improperly created a new standard that is amorphous, overly

broad, and unduly burdensome.   She contends that the panel’s

decision will generate frivolous disputes over the relocation of

children.   Plaintiff maintains that the panel should have

applied the Baures test to her application, notwithstanding the

relocation provision in the parties’ Agreement.   She asserts

that the Appellate Division’s decision infringes on her

constitutional right to travel because it prevents her from

relocating to Utah.

    Defendant urges the Court to enforce the terms of the

parties’ Agreement.   He contends that the Appellate Division’s

standard is not new, that it will not increase litigation, and

that it will eliminate a party’s incentive to bargain for the

status of parent of primary residence in anticipation of a

planned relocation.   Defendant notes that in N.J.S.A. 9:2-4 the

Legislature expressed a strong public policy in favor of custody

arrangements that promote a child’s continuous interaction with

both parents.   Defendant states that a parent who shares joint

legal custody of her children with another parent and agrees not




We remanded the matter to the trial court, which ordered that
the children attend a school in New Jersey that had merged with
the school they attended prior to their move to Utah.
                                14
to relocate with the children without the other parent’s consent

has no constitutional right to relocate with the children.

    Amicus curiae the New Jersey State Bar Association opposes

the standard applied by the panel.   It contends that a parent

entering into a custody agreement does not waive his or her

right to seek a judicial determination of custody unless that

parent waives that right with clear and unmistakable language.

The New Jersey State Bar Association urges the Court to affirm

the panel’s determination but modify its instructions to the

trial court, so that the trial court will determine whether

plaintiff waived her right to a judicial decision on the

question of relocation, apply a best interests analysis if

plaintiff did waive that right, and apply the Baures standard if

she did not do so.   At oral argument, the New Jersey State Bar

Association stated that the Baures standard should be reviewed.

                               IV.

                                A.

    This appeal arose from the trial court’s application of

N.J.S.A. 9:2-2, a provision addressing the custody of children

after the separation or divorce of their parents.   The custody

statute was enacted to further New Jersey’s public policy “to

assure minor children of frequent and continuing contact with

both parents after” separation or divorce.   N.J.S.A. 9:2-4.     The

Legislature declared it to be “in the public interest to

                                15
encourage parents to share the rights and responsibilities of

child rearing in order to effect this policy.”    Ibid.    It

provided that “[i]n any proceeding involving the custody of a

minor child, the rights of both parents shall be equal.”        Ibid.

    The custody statute affords to the Family Part a range of

options to serve the needs of children and their families:

“[j]oint custody of a minor child to both parents,” “[s]ole

custody to one parent with appropriate parenting time for the

noncustodial parent,” and “[a]ny other custody arrangement as

the court may determine to be in the best interests of the

child.”   N.J.S.A. 9:2-4(a), (b), (c).   The Legislature

prescribed a non-exclusive list of factors to guide a court

charged to determine the custody arrangement that most

effectively serves the child’s best interests:

          the parents’ ability to agree, communicate and
          cooperate in matters relating to the child;
          the parents’ willingness to accept custody and
          any   history   of  unwillingness   to   allow
          parenting time not based on substantiated
          abuse; the interaction and relationship of the
          child with its parents and siblings; the
          history of domestic violence, if any; the
          safety of the child and the safety of either
          parent from physical abuse by the other
          parent; the preference of the child when of
          sufficient age and capacity to reason so as to
          form an intelligent decision; the needs of the
          child; the stability of the home environment
          offered; the quality and continuity of the
          child’s education; the fitness of the parents;
          the geographical proximity of the parents’
          homes; the extent and quality of the time
          spent with the child prior to or subsequent to

                                16
          the separation; the parents’ employment
          responsibilities; and the age and number of
          the children. A parent shall not be deemed
          unfit unless the parents’ conduct has a
          substantial adverse effect on the child.

          [N.J.S.A. 9:2-4(c).]

     When “the parents cannot agree to a custody arrangement,”

the court may require each parent to submit a custody plan for

its consideration.    N.J.S.A. 9:2-4(e).   When a court orders a

custody arrangement that is not agreed to by both parents, it

must identify on the record the specific factors that justify

the arrangement.     N.J.S.A. 9:2-4(f).

     A custody arrangement adopted by the trial court, whether

based on the parties’ agreement or imposed by the court, is

subject to modification based on a showing of changed

circumstances, with the court determining custody in accordance

with the best interests standard of N.J.S.A. 9:2-4.5    See Beck v.

Beck, 86 N.J. 480, 496 n.8 (1981) (noting that party seeking

change in custody arrangement must demonstrate “change of

circumstances warranting modification”); Mimkon v. Ford, 66 N.J.

426, 438 (1975) (holding that custody orders are “subject to




5 In the context of an application to modify support obligations
set forth in a settlement agreement, this Court has held that
obligations created by parties’ agreements entered into at the
time of a divorce may be modified by a court upon a showing of
changed circumstances, the same standard that governs
modification of judicial orders addressing those issues. Lepis
v. Lepis, 83 N.J. 139, 146 (1980).
                                  17
modification at any time on showing of changed circumstances”);

Abouzahr v. Matera-Abouzahr, 361 N.J. Super. 135, 152 (App.

Div.) (“A party seeking modification of a judgment,

incorporating a [settlement agreement] regarding custody or

visitation, must meet the burden of showing changed

circumstances and that the agreement is now not in the best

interests of a child.”), certif. denied, 178 N.J. 34 (2003).

                                 B.

    The provision of the custody statute at the center of this

appeal is N.J.S.A. 9:2-2.    It requires a showing of “cause”

before a court will authorize the permanent removal of a child

to another state without the consent of both parents or, if the

child is of “suitable age” to decide, the consent of the child.

Specifically, the statute provides:

         When the Superior Court has jurisdiction over
         the custody and maintenance of the minor
         children of parents divorced, separated or
         living separate, and such children are natives
         of this State, or have resided five years
         within its limits, they shall not be removed
         out of its jurisdiction against their own
         consent, if of suitable age to signify the
         same, nor while under that age without the
         consent of both parents, unless the court,
         upon cause shown, shall otherwise order. The
         court, upon application of any person [o]n
         behalf of such minors, may require such
         security and issue such writs and processes as
         shall be deemed proper to effect the purposes
         of this section.

         [N.J.S.A. 9:2-2.]


                                 18
       The Legislature required a showing of “cause” for an out-

of-state relocation under N.J.S.A. 9:2-2 in order “to preserve

the rights of the noncustodial parent and the child to maintain

and develop their familial relationship.”      Holder v. Polanski,

111 N.J. 344, 350 (1988) (quoting Cooper v. Cooper, 99 N.J. 42,

50 (1984)).

       As this Court has observed, a court making the sensitive

determination of “cause” must weigh “the custodial parent’s

interest in freedom of movement as qualified by his or her

custodial obligation, the State’s interest in protecting the

best interests of the child, and the competing interests of the

noncustodial parent.”    Ibid. (citing Cooper, supra, 99 N.J. at

56).   When a parent of alternate residence objects to a proposal

by the parent of primary residence to relocate children out of

state, “there is a clash between the custodial parent’s interest

in self-determination and the noncustodial parent’s interest in

the companionship of the child.”      Baures, supra, 167 N.J. at 97.

In the application of N.J.S.A. 9:2-2 to a relocation dispute,

“[t]here is rarely an easy answer or even an entirely

satisfactory one.”    Ibid.

       The Court discussed the showing necessary for a finding of

“cause” under N.J.S.A. 9:2-2 in two cases decided prior to

Baures.   In Cooper, supra, the Court held that a custodial

parent seeking an order authorizing the relocation of children

                                 19
must show “a real advantage to that parent in the move,” and

demonstrate that relocation would not be “inimical to the best

interests of the children.”    99 N.J. at 56.    The Court modified

that test in Holder, supra, ruling that a custodial parent

demonstrates “cause” for purposes of N.J.S.A. 9:2-2 if he or she

presents a “good-faith reason” for the relocation and

demonstrates that it would not be “inimical to the best

interests of the children or adversely affect the visitation

rights of the noncustodial parent.”      111 N.J. at 353.

       In Baures, supra, the Court substantially eased the burden

imposed on a custodial parent to demonstrate “cause” for a

relocation under N.J.S.A. 9:2-2.      167 N.J. at 116-20.   Under the

standard prescribed in that case, a trial court’s threshold

determination is whether the objecting parent “shares physical

custody either de facto or de jure or exercises the bulk of

custodial responsibilities due to the incapacity of the

custodial parent or by formal or informal agreement.”       Id. at

116.   The Court held that in the shared-custody setting, the

trial court should treat the relocation application as a motion

for a change in custody “governed initially by a changed

circumstances inquiry and ultimately by a simple best interests

analysis.”   Ibid.

       The Court held that if the trial court’s threshold inquiry

reveals that the parent seeking removal is the custodial parent,

                                 20
that parent would establish “cause” under N.J.S.A. 9:2-2 if he

or she proved “good faith and that the move will not be inimical

to the child’s interest.”    Id. at 116.     The Court set forth a

list of factors, “not all [of which] will be relevant and of

equal weight in every case,” to guide the determination of the

“good faith” and “not . . . inimical to the child’s interest”

prongs of its new test.     Id. at 116-17.

    In Baures, the Court displaced the burden, imposed under

Holder on the parent seeking relocation, to demonstrate that the

move would not adversely affect the visitation rights of the

noncustodial parent.     Id. at 112 (citing Holder, supra, 111 N.J.

at 353).   The Court held that a trial court should not deny a

motion for relocation merely because the modification would

reduce the objecting parent’s visitation but should bar

relocation only if the move would have an “adverse effect,”

defined as “a change in visitation that will not allow the

noncustodial parent to maintain his or her relationship with the

child.”    Id. at 113.

    The Court identified two developments in support of its

alteration of the governing standard for N.J.S.A. 9:2-2

relocation applications.    Id. at 106-09.    First, the Court

concluded that when a relocation benefits a “custodial parent,”

it will, as a general rule, similarly benefit the child.         Id. at

106-08.    The Court commented that “social science research links

                                  21
a positive outcome for children of divorce with the welfare of

the primary custodian and the stability and happiness within

that newly formed post-divorce household,” and that such

research “has uniformly confirmed the simple principle that, in

general, what is good for the custodial parent is good for the

child.”    Id. at 106.   For that conclusion, the Court relied on

two studies:   Judith S. Wallerstein & Tony J. Tanke, To Move or

Not to Move:   Psychological and Legal Considerations in the

Relocation of Children Following Divorce, 30 Fam. L.Q. 305, 311-

12 (1996), and Marsha Kline et al., Children’s Adjustment in

Joint and Sole Physical Custody Families, 25 Developmental

Psychol. 430, 431 (1989) (co-authored by Wallerstein).       Baures,

supra, 167 N.J. at 106.    The Court also cited social science

research for the principle that, “[a]lthough confidence that he

or she is loved and supported by both parents is crucial to the

child’s well-being after a divorce, no particular visitation

configuration is necessary to foster that belief.”      Id. at 107

(citing Frank F. Furstenberg, Jr. & Andrew J. Cherlin, Divided

Families:   What Happens to Children When Parents Part 72

(1991)).

    Second, the Court invoked “the growing trend in the law

easing restrictions on the custodial parent’s right to relocate

with the children and recognizing the identity of interest of

the custodial parent and child.”       Baures, supra, 167 N.J. at

                                  22
107-09 (discussing In re Marriage of Burgess, 913 P.2d 473, 481

(Cal. 1996); In re Marriage of Francis, 919 P.2d 776, 778, 779,

782, 784-85 (Colo. 1996) (en banc); Sefkow v. Sefkow, 427 N.W.2d

203, 214 (Minn. 1988) (en banc); Auge v. Auge, 334 N.W.2d 393,

399 (Minn. 1983) (en banc), superseded by statute, Minn. Stat. §

518.175; Tropea v. Tropea, 665 N.E.2d 145, 149-51 (N.Y. 1996);

Fortin v. Fortin, 500 N.W.2d 229, 233 (S.D. 1993); Taylor v.

Taylor, 849 S.W.2d 319, 332 (Tenn. 1993); Long v. Long, 381

N.W.2d 350, 352 (Wis. 1986)).   In support of the custodial

parent’s “presumptive right” to move, the Court relied primarily

on the California Supreme Court’s decision in Burgess, in which

Wallerstein appeared as amicus curiae to present her research.

Id. at 108-09; Burgess, supra, 913 P.2d at 483 n.11.   The Court

characterized this authority as representing a “shift in

relocation law” in favor of a custodial parent’s decision to

relocate out of state with his or her child.   Ibid.

    In the wake of Baures, trial courts routinely conduct a

threshold determination of whether the parties’ custody

arrangement assigns to one parent a primary role or involves

equally shared custody.   See, e.g., Morgan v. Morgan, 205 N.J.

50, 66-67 (2011) (rejecting father’s contention that

notwithstanding terms of parties’ agreement, parties’ custody

arrangement was in effect shared custody for purposes of

threshold determination under Baures); Barblock v. Barblock, 383

                                23
N.J. Super. 114, 124-25 (App. Div. 2006) (rejecting father’s

claim that custody arrangement constituted shared custody due to

parents’ equal allocation of time with children); O’Connor,

supra, 349 N.J. Super. at 385 (affirming trial court’s

determination that despite terms of parties’ agreement, father

assumed most custodial responsibilities and arrangement was in

effect shared custody); Mamolen v. Mamolen, 346 N.J. Super. 493,

501-02 (App. Div. 2002) (reversing trial court’s determination

that custody arrangement amounted to shared custody based

primarily on children’s emotional relationship with father).     By

virtue of the Baures standard, the parties’ custody arrangement

is the focus of the court’s initial inquiry.

    Because the parties’ custodial arrangement is potentially

dispositive when a court determines whether to authorize

relocation under Baures, a collateral dispute regarding the

parties’ good faith in their custody negotiations may arise.     In

Shea v. Shea, after the parent of primary residence sought an

order authorizing her to relocate the child out of state, the

parent of alternate residence accused her of “a subterfuge in

that she planned to seek removal [of the child from New Jersey]

shortly after the divorce was entered.”   384 N.J. Super. 266,

268-70 (Ch. Div. 2005).   The parent of primary residence

“denie[d] any manipulative purpose.”   Id. at 270.   The court

held that when a request for relocation closely follows a

                                24
settlement and a final judgment of divorce, and the party

seeking to remove the child knew of “the material facts and

circumstances forming the good faith reason for the removal

request” when judgment was entered, the best interests standard

would apply, whether or not “the parties had a true shared

parenting arrangement.”    Id. at 271.   The court observed that

“[t]o rule otherwise could potentially encourage disingenuous

settlements, encourage a party to use the Baures line of cases

as a sword, or alternatively compel a cautious party to

exhaustively litigate custody when not truly necessary.”     Ibid.

       That principle was applied by the panel in this case, which

held that if a remand hearing revealed that plaintiff

manipulated the parties’ negotiations to gain an advantage in an

anticipated relocation dispute, “‘fundamental fairness’ requires

the trial court to apply the ‘best interests of the child’

standard rather than the Baures standard.”    Bisbing, supra, 445

N.J. Super. at 217 (quoting Shea, supra, 384 N.J. Super. at 273-

74).

                                 C.

       In that setting, we consider whether to retain the Baures

standard as the benchmark for contested relocation

determinations decided pursuant to N.J.S.A. 9:2-2.

       “[W]e do not lightly alter one of our rulings” because

consistent jurisprudence “provides stability and certainty to

                                 25
the law.”   Pinto v. Spectrum Chems. & Lab. Prods., 200 N.J. 580,

598 (2010).   The principle of stare decisis “carries such

persuasive force that we have always required a departure from

precedent to be supported by some special justification.”

Luchejko v. City of Hoboken, 207 N.J. 191, 208 (2011) (quoting

State v. Brown, 190 N.J. 144, 157 (2007)).    Such justification

might be found “when experience teaches that a rule of law has

not achieved its intended result.”    Pinto, supra, 200 N.J. at

598; cf. Olds v. Donnelly, 150 N.J. 424, 440 (1997) (“Candor

compels that we acknowledge that the application of the entire

controversy doctrine to legal-malpractice claims has not

fulfilled our expectations.”).

    We find such justification for a departure from precedent

in this case.   In deciding Baures, the Court did not intend to

diverge from the best interests of the child standard at the

core of our custody statute, or to circumvent the legislative

policy that parents have equal rights “[i]n any proceeding

involving the custody of a minor child.”    N.J.S.A. 9:2-4.

Instead, confronting a dispute that defies simple solutions, the

Court sought guidance in social science research as to the best

interests of the child, which at that time tethered the best

interests of the child to the custodial parent’s well-being.

Baures, supra, 167 N.J. at 97, 106-09.     The Court also discerned

a trend in the law “significantly eas[ing] the burden on

                                 26
custodial parents in removal cases.”     Id. at 107 (collecting

cases).   On those grounds, the Court replaced the best interests

of the child test in relocation applications brought by parents

with primary custody in favor of its two-pronged “good faith”

and “not . . . inimical to the child” test.    Id. at 118.

    Wallerstein’s social science research suggesting that the

primary custodian’s welfare is the paramount consideration has

been both supported and called into question in publications by

scholars in the field.   See Richard A. Warshak, Social Science

and Children’s Best Interests in Relocation Cases:    Burgess

Revisited, 34 Fam. L.Q. 83, 83, 109-10 (2000) (criticizing

amicus curiae brief submitted to California court by Wallerstein

in Burgess because seven of ten studies cited in brief were

authored by Wallerstein or other members of her research group

and because brief did not recognize limits of social science);

see also Sanford L. Braver, et al., Relocation of Children After

Divorce and Children’s Best Interests:     New Evidence and Legal

Considerations, 17 J. Fam. Psychol. 206, 210 (2003) (“[C]ourts

ought to have better data than was available to the Burgess and

Baures tribunals on the question of the impact of parental moves

on the children of divorce.”); Carol S. Bruch, Sound Research or

Wishful Thinking in Child Custody Cases?    Lessons from

Relocation Law, 40 Fam. L.Q. 281, 314 (2006) (concluding that

protecting child’s relationship with his or her primary

                                27
caregiver and that person’s decisions, including decision to

relocate, serves child’s best interests).   Other research has

underscored the critical importance of a child’s close

relationship with his or her parent of alternate residence.

See, e.g., Paul R. Amato & Joan G. Gilbreth, Nonresident Fathers

and Children’s Well-Being:   A Meta-Analysis, 61 J. Marriage &

Fam. 557, 559-65 (1999) (concluding that data from sixty-three

studies indicates that child’s “feelings of closeness” with and

“authoritative parenting” by his or her “nonresident father” are

associated with child’s academic achievement and well-being); K.

Alison Clarke-Stewart & Craig Hayward, Advantages of Father

Custody and Contact for the Psychological Well-Being of School-

Age Children, 17 J. Applied Developmental Psychol. 239, 260

(1996) (recounting study’s finding that “parentlike contact with

the noncustodial parent had the additional advantage of being

associated with better relations with both parents, which to

some extent was responsible for children’s better well-being”).

    In short, social scientists who have studied the impact of

relocation on children following divorce have not reached a

consensus.   Instead, the vigorous scholarly debate reveals that

relocation may affect children in many different ways.

The Court’s conclusion in Baures, supra, that in general, “what

is good for the custodial parent is good for the child” is no

doubt correct with regard to some families following a divorce.

                                28
167 N.J. at 106.   As the social science literature reflects,

however, that statement is not universally true; a relocation

far away from a parent may have a significant adverse effect on

a child.   See Braver, et al., supra, 17 J. Fam. Psychol. at 210

(“We find a preponderance of negative effects associated with

parental moves by mother or father, with or without the child,

as compared with divorced families in which neither parent moved

away.”); Christine Winquist Nord, et al., Fathers’ Involvement

in Their Children’s Schools, Nat’l Ctr. Educ. Statistics (Sept.

1997), https://nces.ed.gov/pubs98/fathers/ (reporting on

research demonstrating importance of active participation in

children’s school by “nonresident fathers”).

    Moreover, the progression in the law toward recognition of

a parent of primary residence’s presumptive right to relocate

with children, anticipated by this Court in Baures, has not

materialized.   See Baures, supra, 167 N.J. at 109 (identifying

“growing trend” in case law against restrictions on custodial

parent’s right to relocate with children and recognizing that

parent’s identity of interest with child).   For instance, in In

re Marriage of Ciesluk, 113 P.3d 135, 137 (Colo. 2005) (en

banc), the Colorado Supreme Court repudiated the test it adopted

in Francis, supra, 919 P.2d at 784-85, in light of a legislative

enactment that eliminated the presumption in favor of the

majority time parent seeking to relocate.    Francis, supra, 919

                                29
P.2d at 784-85, was a leading case on which this Court relied in

Baures, supra, 167 N.J. at 109.    The Supreme Court of

California, whose opinion in Burgess was also relied on in

Baures, has revisited the standard of Burgess and a state

statute codifying Burgess, Cal. Fam. Code § 7501, and has

reaffirmed its earlier rejection of “bright line rules in this

area” in favor of an evaluation of each case “on its own unique

facts.”   In re Marriage of LaMusga, 88 P.3d 81, 91 (Cal. 2004).

     Today, the majority of states, either by statute or by case

law, impose a best interests test when considering a relocation

application filed by a parent with primary custody or custody

for the majority of the child’s time; some have recently

abandoned a presumption in favor of the parent of primary

residence.6   A minority of jurisdictions apply a standard that


6  Ariz. Rev. Stat. Ann. § 25-408(A),(G) (providing that if both
parents are entitled to joint legal-decision making or parenting
time, court shall determine whether to allow parent to relocate
child in accordance with child’s best interests); Conn. Gen.
Stat. § 46b-56d(a) (requiring that when relocation impacts
parenting plan, relocating parent must prove relocation is for
legitimate purpose, proposed location is reasonable, and
relocation is in best interests of child); 750 Ill. Comp. Stat.
5/609.2(b),(g) (providing that relocation by parent with
majority or equal parenting time requires court to modify
parenting plan or allocation in accordance with child’s best
interests); Ohio Rev. Code Ann. § 3109.051(G)(1) (providing that
if residential parent moves to residence not specified in
decree, court schedules hearing to determine whether it is in
best interest of child to revise parenting time schedule); 23
Pa. Cons. Stat. § 5337(h) (prescribing best interests of child
factors governing relocation decision); Utah Code Ann. § 30-3-
37(4) (requiring court to decide whether relocation of custodian
                                  30
is in best interests of child); Chesser-Witmer v. Chesser, 117
P.3d 711, 717 (Alaska 2005) (holding that if out-of-state move
by custodian or joint custodian requires modification of custody
arrangement, modification must be in best interests of child);
Ciesluk, supra, 113 P.3d at 137 (recognizing legislative
elimination of presumption and applying best interests standard
under Colorado law); Fredman v. Fredman, 960 So. 2d 52, 55-56
(Fla. Dist. Ct. App.) (noting that legislature overruled court-
created presumption in favor of primary residential parent’s
relocation by enacting statute which provides that there is no
presumption in favor of or against request to relocate), review
denied, 968 So. 2d 556 (2007), cert. denied, 552 U.S. 1243, 128
S. Ct. 1481, 170 L. Ed. 2d 297 (2008); Bodne v. Bodne, 588
S.E.2d 728, 729 (Ga. 2003) (requiring courts to consider best
interests of child and overruling presumption that custodial
parent has prima facie right to retain custody); Fisher v.
Fisher, 137 P.3d 355, 365 (Haw. 2006) (rejecting argument for
“preference and priority” for “primary caretaker and stability
in residential and educational arrangements” in favor of best
interests standard); Bartosz v. Jones, 197 P.3d 310, 315 (Idaho
2008) (“When a move would violate an existing custody
arrangement, the parent seeking permission to relocate with the
child has the burden of proving that the relocation is in the
best interest of the child.”); In re Marriage of Whipp, 962 P.2d
1058, 1059 (Kan. 1998) (stating that for relocations that
materially change circumstances to justify change in custody,
court must determine whether change is in child’s best
interests); Gray v. Gray, 65 So. 3d 1247, 1255 (La. 2011)
(noting that La. Rev. Stat. § 9:355.1 to -.17 represents “policy
determination that . . . parent seeking to relocate the
principal residence of the child must prove not only that the
request for relocation is made in good faith, but also that the
relocation is in the best interest of the child”); Brasier v.
Preble, 82 A.3d 841, 844-45 (Me. 2013) (holding that relocation
that changes circumstances may require modification of custody
arrangement in accordance with child’s best interests); Braun v.
Headley, 750 A.2d 624, 636 (Md. Ct. Spec. App.) (applying best
interests of child standard to relocation that materially
changes circumstances), cert. denied, 755 A.2d 1139 (Md. 2000),
cert. denied, 531 U.S. 1191, 121 S. Ct. 1190, 149 L. Ed. 2d 106
(2001); In re Marriage of Goldman, 748 N.W.2d 279, 288 (Minn.
2008) (en banc) (Anderson, Paul H., J., dissenting) (noting that
legislature amended Minn. Stat. § 518.175 and replaced
“presumption in favor of the custodial parent” with best
interests of child standard); Pasternak v. Pasternak, 467 S.W.3d
264, 269 (Mo. 2015) (en banc) (holding that under Mo. Rev. Stat.
                               31
expressly or implicitly favors the relocation decision of the

parent with primary or majority-time custody; some but not all

of those jurisdictions characterize that preference as a




§ 452.377, change in principal residence requires court to
determine whether relocation is in good faith and best interests
of child); In re Marriage of Robison, 53 P.3d 1279, 1283 (Mont.
2002) (noting Montana legislature eliminated presumption in
favor of primary caretaker in its best-interests-of-child
statute, which applies to relocation determinations that warrant
change in parenting plan); Schrag v. Spear, 858 N.W.2d 865, 874
(Neb. 2015) (holding that custodial parent must demonstrate he
or she has legitimate reason for leaving state and that it is in
child’s best interests to continue living with him or her in new
location); Jaramillo v. Jaramillo, 823 P.2d 299, 307-09 (N.M.
1991) (rejecting use of presumptions and holding instead that
custody arrangement must be modified to serve best interests of
child if relocation changes circumstances); Tropea, supra, 665
N.E.2d at 150 (rejecting presumptions and holding that
relocation request must be considered in totality of
circumstances “with predominant emphasis . . . placed on what
outcome is most likely to serve the best interests of the
child”); In re Marriage of Colson, 51 P.3d 607, 612-14 (Or. Ct.
App. 2002) (noting that if move constitutes change of
circumstances, modification to custody arrangement still
requires showing that modification serves children’s best
interests); Valkoun v. Frizzle, 973 A.2d 566, 576-77 (R.I. 2009)
(stating that relocating custodial parent must prove legitimate,
not necessarily compelling, reason to move, and relocation is in
child’s best interests); Latimer v. Farmer, 602 S.E.2d 32, 34-35
(S.C. 2004) (adopting best interests standard instead of
previous presumption against relocation); Falanga v. Boylan, 123
A.3d 811, 814 (Vt. 2015) (stating that relocation that amounts
to changed circumstances necessitates reexamination of child’s
best interests); Wheeler v. Wheeler, 591 S.E.2d 698, 701 (Va.
Ct. App. 2004) (requiring material change in circumstances and
best interests of child to modify decree permitting custodial
parent to relocate); Arnott v. Arnott, 293 P.3d 440, 457-58
(Wyo. 2012) (overruling former presumption in favor of custodial
parent and holding that relocation that results in change of
circumstances warrants determination of proper custodial
arrangement that is in best interests of child).


                               32
“presumption.”7   As experience has proven, the standard adopted

in Baures did not represent a lasting trend in the law.




7  See 43 Okla. Stat. § 112.3(K) (relocating person must prove
relocation is in good faith and, if burden is met, then
nonrelocating person must show relocation is not in best
interest of child); Wis. Stat. § 767.481(3)(a)(2)(a) (“There is
a rebuttable presumption that continuing the current allocation
of decision making under a legal custody order or continuing the
child’s physical placement with the parent with whom the child
resides for the greater period of time is in the best interest
of the child.”); Singletary v. Singletary, 431 S.W.3d 234, 239-
40 (Ark. 2013) (recognizing presumption in favor of relocation
for parents with sole or primary custody and noting that guiding
principle in making relocation decision is best interests of
child); In re Marriage of Hoffman, 867 N.W.2d 26, 33 (Iowa 2015)
(conferring final authority on parent with physical care of
child to decide location of child’s residence but noting that
such authority “is not unlimited” and is “subject to judicial
review based on . . . best interests of the child[]”); In re
Heinrich & Curotto, 7 A.3d 1158, 1163 (N.H. 2010) (noting that
under New Hampshire relocation statute, relocating parent has
initial burden of demonstrating that relocation is for
legitimate purpose and is reasonable and burden then shifts to
opposing parent to prove relocation is not in child’s best
interests); Brosnan v. Brosnan, 840 N.W.2d 240, 247 (S.D. 2013)
(noting relocation statute provides that “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”);
Aragon v. Aragon, 513 S.W.3d 447, 459-60 (Tenn. 2017)
(interpreting Tenn. Code Ann. § 36-6-108 to provide that parent
spending greater amount of time with child is permitted to
relocate with child unless court finds move does not have
reasonable purpose, move would pose threat of harm to child, or
motive for move is vindictive); In re Marriage of Horner, 93
P.3d 124, 130 (Wash. 2004) (noting that relocation statute
“establishes a rebuttable presumption that the relocation of the
child will be allowed” (quoting Osborne v. Osborne (in re
Osborne), 79 P.3d 465, 471 (Wash. Ct. App. 2003))); Storrie v.
Simmons, 693 S.E.2d 70, 76 (W. Va. 2010) (per curiam)
(authorizing relocation on showing that relocation that changes
circumstances is in good faith, for a legitimate purpose, and to
location that is reasonable in light of purpose).
                                33
     Moreover, the threshold determination mandated by Baures

may engender unnecessary disputes between parents over the

designation of the parent of primary residence and accusations

that a parent sought that designation in bad faith, anticipating

a relocation.   Our custody statute clearly envisions that a

custody arrangement will serve a paramount purpose:    the

promotion of the child’s best interests.    N.J.S.A. 9:2-4.    The

parties and the court should select the parent of primary

residence based on that parent’s capacity to meet the needs of

the child.   Ibid.   If a designation as the parent of primary

residence will determine the result of a relocation dispute,

parties may be motivated to contest that designation even if one

parent is clearly in a better position to serve that primary

role.   As this case illustrates, the advantage afforded to a

parent of primary residence in a relocation conflict may raise

divisive accusations of bad faith after custody negotiations

conclude.    See Bisbing, supra, 445 N.J. Super. at 217; see also

Shea, supra, 384 N.J. Super. at 271-72.    In short, by tethering

the relocation standard to one party’s status as the parent of

primary residence, the Baures standard may generate unnecessary

disputes regarding that designation.

     Our decision to replace the Baures test with a best

interests analysis is consonant with our opinion in Emma v.

Evans, 215 N.J. 197, 216-23 (2013).    In Emma, we addressed the

                                 34
standard applied when a parent seeks to change the child’s

surname, and the other parent objects to the renaming of the

child.   Ibid.   Prior to our opinion in Emma, courts applied a

rebuttable presumption that “in contested cases the surname

selected by the custodial parent -- the parent primarily charged

with making custodial decisions in the child’s best interest --

shall be presumed to be consistent with that child’s best

interests.”   Gubernat v. Deremer, 140 N.J. 120, 123 (1995).      In

Emma, supra, we abandoned that presumption in favor of a

standard based on the best interests of the child, with the

parents “on equal footing” in that inquiry.   215 N.J. at 221-22.

    Accordingly, we do not consider the Baures standard to be

compelled by social science or grounded in legal authority

today, as the Court anticipated that it would be when it decided

that case.    We recognize a “special justification” in this case

to abandon that standard.    See Luchejko, supra, 207 N.J. at 208-

09; Pinto, supra, 200 N.J. at 598.

                                 D.

    In place of the Baures standard, courts should conduct a

best interests analysis to determine “cause” under N.J.S.A. 9:2-

2 in all contested relocation disputes in which the parents

share legal custody -- whether the custody arrangement

designates a parent of primary residence and a parent of

alternate residence, or provides for equally shared custody.

                                 35
That standard comports with our custody statute, in which the

Legislature unequivocally declared that the rights of parents

are to be equally respected in custody determinations and stated

that custody arrangements must serve the best interests of the

child.   N.J.S.A. 9:2-4.   A number of the statutory best

interests factors will be directly relevant in typical

relocation decisions and additional factors not set forth in the

statute may also be considered in a given case.     Ibid.

    In the best interests analysis, the parent of primary

residence may have important insights about the arrangement that

will most effectively serve the child.     The parent of alternate

residence may similarly offer significant information about the

child.   The views of other adults with close relationships with

the child may also inform the court’s decision.     See Emma,

supra, 215 N.J. at 216-23 (holding that in best interests

analysis regarding child’s name, court should consider both

parents’ views and views of other adults close to child).       The

trial court may consider other evidence, including documentary

evidence, interviews with the children at the court’s

discretion, and expert testimony.     See R. 5:8-6 (“As part of the

custody hearing, the court may on its own motion or at the

request of a litigant conduct an in camera interview with the

child(ren).”); Pressler & Verniero, supra, comment 1.4.5 on R.

5:8-6 (stating that in custody hearings, “[i]t is clear that the

                                 36
parties must have an appropriate opportunity for experts’

assistance”); Kinsella v. Kinsella, 150 N.J. 276, 318 (1997)

(“In implementing the ‘best-interest-of-the child’ standard,

courts rely heavily on the expertise of psychologists and other

mental health professionals.”).

                                  E.

    We briefly address plaintiff’s contention, unsupported by

citation to federal or state authority, that the Appellate

Division’s application of N.J.S.A. 9:2-2 infringes on her due

process right to travel out of state.

    We do not view N.J.S.A. 9:2-2’s constraints on a parent’s

authority to relocate children living in the state to a

different state, over the other parent’s objection, to infringe

on the relocating parent’s constitutional right to interstate

travel.   The United States Supreme Court has defined the right

to travel as

          the right of a citizen of one State to enter
          and to leave another State, the right to be
          treated as a welcome visitor rather than an
          unfriendly alien when temporarily present in
          the second State, and, for those travelers who
          elect to become permanent residents, the right
          to be treated like other citizens of that
          State.

          [Saenz v. Roe, 526 U.S. 489, 500, 119 S. Ct.
          1518, 1525, 143 L. Ed. 2d 689, 702 (1999); see
          also Mem’l Hosp. v. Maricopa County, 415 U.S.
          250, 263, 94 S. Ct. 1076, 1085, 39 L. Ed. 2d
          306, 318 (1974) (discussing right to travel).]


                                  37
    N.J.S.A. 9:2-2 does not infringe upon any of those rights.

The statute places no constraint on plaintiff’s right to travel.

It does, however, place a limitation on her claimed right to

permanently relocate her children from our State without the

court’s approval when another parent’s rights and the child’s

best interests are at stake.

    As this Court noted in Holder, supra, in which we declined

to reach a parent’s constitutional challenge to N.J.S.A. 9:2-2,

“[s]hort of an adverse effect on the noncustodial parent’s

visitation rights or other aspects of a child’s best interests,

the custodial parent should enjoy the same freedom of movement

as the noncustodial parent.”     111 N.J. at 352 (collecting

cases).   The Constitution, however, “does not prohibit a state

from imposing some legal consequences on a person’s entering or

leaving the jurisdiction.”     Murnane v. Murnane, 229 N.J. Super.

520, 528 (App. Div. 1989) (citing Sosna v. Iowa, 419 U.S. 393,

95 S. Ct. 553, 42 L. Ed. 2d 532 (1975); Starns v. Malkerson, 326

F. Supp. 234 (D. Minn. 1970), aff’d, 401 U.S. 985, 91 S. Ct.

553, 42 L. Ed. 2d 527 (1971)).    A court that has determined

“custody on the assumption of residence within New Jersey so as

to protect, among other things, the visitation rights of the

noncustodial parent and the interest of the child in maintaining

a close relationship with that parent” has the authority to

constrain a parent from altering custody without violating that

                                  38
parent’s due process right to travel.    Ibid.; see also Holder,

supra, 111 N.J. at 352.

     Any limitation on plaintiff’s travel imposed by the trial

court pursuant to N.J.S.A. 9:2-2 would relate solely to her

intention to move her children to Utah, a departure from the

custody arrangement that the parties agreed upon and the court

ordered.   Such a limitation would not violate plaintiff’s due

process right to interstate travel.     Murnane, supra, 229 N.J.

Super. at 528.

                                V.

     Our holding compels a remand of this matter to the trial

court for a plenary hearing to determine whether the custody

arrangement set forth in the parties’ Agreement should be

modified to permit the relocation of the parties’ daughters to

Utah.

     We do not agree with defendant’s assertion that by

consenting to the interstate relocation provision of the

parties’ Agreement, plaintiff waived her right to a judicial

determination of her relocation application under N.J.S.A. 9:2-

2.   That Agreement, however, is significant to the court’s

determination on remand.   Because the custody arrangement was

agreed to and incorporated in the trial court’s judgment,

plaintiff is required to demonstrate changed circumstances to



                                39
justify its modification.   Quinn v. Quinn, 225 N.J. 34, 48-49

(2016); Lepis, supra, 83 N.J. at 147.

    In addition, because the modification of custody sought by

plaintiff is a permanent relocation governed by N.J.S.A. 9:2-2,

plaintiff must demonstrate that there is “cause” for an order

authorizing such relocation.   In that inquiry, “cause” should be

determined by a best interests analysis in which the court will

consider all relevant factors set forth in N.J.S.A. 9:2-4(c),

supplemented by other factors as appropriate.   On remand, the

court should consider, under that analysis, the parties’

Agreement, in which the parties acknowledged that they equally

provide their daughters’ “quality of life and style of life,”

and “acknowledge[d] a direct causal connection between the

frequency and duration” of their children’s contact with both

parents, and “the quality of the relationship” between the

children and each parent.   The trial court should also consider

other evidence presented by the parties.

    Because the best interests standard applies to the

determination of “cause” under N.J.S.A. 9:2-2 notwithstanding

plaintiff’s designation as the parent of primary residence, the

question whether plaintiff anticipated a relocation when she

negotiated for that designation does not determine the governing

standard.   In the remand hearing, the court need not decide



                                40
whether plaintiff negotiated the parties’ Agreement in bad

faith.

                               VI.

    The judgment of the Appellate Division is modified and

affirmed, and the matter is remanded to the trial court for

proceedings in accordance with this opinion.



     CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE PATTERSON’s
opinion.




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