Often times my divorce and family law firm have clients that move to New Jersey with their children after a divorce only to find themselves involved in a custody dispute after they move. When a child moves to New Jersey from another State post-divorce, Jurisdiction over the child becomes a hotly contested issue. This legal issue is often misunderstood and complicated but one that every attorney at our law firm has ample experience with. Following is a true story shared by one of our rising stars, Elizabeth Rozin-Golinder, Esq.
Recently I represented a father in such a case, who I shall refer to as John. John was married and divorced in New York. His ex-wife had primary residential custody of their two children. Some time after the divorce John re-married and moved to New Jersey. About a year after moving to New Jersey John’s youngest daughter moved in with him for her safety. She was enrolled in school in New Jersey, started seeing a therapist in New Jersey, became involved in extra-curricular activities in New Jersey and was clearly not returning back to New York. John’s ex-wife rarely saw the child once she moved, but started threatening that she would take her back to New York. John did not have any Court documents allowing the child to live with him, and the New York divorce agreement stated that his ex-wife would have residential custody. Both John and his ex-wife filed applications with the Court for custody of the child. The only conundrum was that John filed in New Jersey and his ex-wife filed in New York. The question became which state would have Jurisdiction over the child? While New Jersey exercised what is called “emergency jurisdiction” because the case involved the safety of a child, the State that would make the final decision in regards to custody remained unknown.
When the Jurisdiction of a child is in question the Courts look to what is known as Uniform Child Custody Jurisdiction and Enforcement Act or “UCCJEA” as it is usually referred to. This act gives Courts guidelines for determining which state should exercise Jurisdiction and it is recognized by every state.
There are several steps in determining whether a State has Jurisdiction over a child.
Under the UCCJEA § 2A:34-65 a New Jersey Family Court has the authority to take initial custody jurisdiction only if:
1) The child has been living in New Jersey for at least six months before filing a complaint in the Superior Court of New Jersey or the child no longer lives in New Jersey but the child’s parent (or legal guardian) remains in N.J.;
2) Another state’s family court does not have jurisdiction over the child (consistent with paragraph one) or has declined jurisdiction because the case belongs in New Jersey. Also, the child, the parent or both must have a “significant connection” with New Jersey and “substantial evidence” exists in this state in order to determine the best interests of the child;
3) If another state could have claimed jurisdiction but did not as New Jersey was deemed to be the best forum to handle the child custody issues at hand;
4) If no state could claim jurisdiction under the UCCJEA. However, a New Jersey Family Court could take on “temporary emergency jurisdiction” in order to protect the child.
I find that the first and most important step is determining which state is the “home state” of the child. Once the home state is established it is usually that state which will have Jurisdiction. The UCCJEA defines “home state” as “the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned.”
Determining the child’s home state is what John’s case came down to in the end. John argued that New Jersey was now the child’s home state as she had been living with him for more than six months at the time he initiated custody proceedings. John’s ex-wife argued that the child was only temporarily staying with John, therefore New York continued to be her home state and should retain Jurisdiction. In a case such as John’s the Judge’s from both states will often conference the matter and analyze the specific facts to determine which state is the appropriate forum.
After the New York and New Jersey Judge’s discussed John’s case several times and reviewed the specific facts, the New York Judge ceded Jurisdiction of the child to New Jersey. While custody was still an issue, it was decided by the Courts that any further custody proceedings would take place in New Jersey, because the same was now the child’s home state.
The foregoing is but one example of a Jurisdictional dispute and many times the law regarding these types of cases is extremely complex. If you are faced with an inter-state custody dispute, please do not hesitate to contact our firm, who is experienced in handling such matters.