In my prior recent posting entitled, “Part One: The Issue of Domicile in Non-Custodial Divorce Cases – Is New Jersey Still My Home?“, I discussed how jurisdiction is determined in matrimonial cases that did not involve a custody dispute. Here, I will discuss how a New Jersey family court will determine whether New Jersey has jurisdiction to decide a custody dispute.
In multi-state and international jurisdictional disputes involving custody, New Jersey in 2004 adopted the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), N.J.S.A. 2A:34-53 to -95. The purpose of the UCCJEA is to ensure that custody determinations are made in the jurisdiction that can best decide a custody matter by deterring interstate parental kidnapping, promoting uniform jurisdiction and enforcement of interstate custody and visitation orders, and preventing “forum shopping”. When determining the appropriate jurisdiction to resolve a custody dispute, the courts first determine where the child’s “home state” was when the action commenced. N.J.S.A. 2A:34-65(a) defines a child’s “home state” as “the state in which a child lived with a parent or person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding . . . A period of temporary absence of any of the mentioned persons is part of the period.” The statute specifically uses the language to describe where a child “lived” rather than where the child was “domiciled” in order to avoid analysis of the state of mind of the child or the caretakers on this issue. The definition “connotes physical presence within the state, rather than subjective intent to remain.” Sajjad v. Cheema, 228 N.J.Super. 160, 172-73 (App.Div. 2012).
After determining whether New Jersey is a child’s “home state,” the court must then determine if a custody proceeding has been commenced in another state or country. If so, the New Jersey court would stay (or put a hold on) its current proceeding. A decision would then have to be made as which state/country would be the more convenient forum. Pursuant to N.J.S.A. 2A:34-71(b), when a New Jersey court is considering whether it is the appropriate forum to exercise jurisdiction, the Court must consider all relevant factors, including:
(1) whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
(2) the length of time the child has resided outside this State;
(3) the distance between the court in this State and the court in the state that would assume jurisdiction;
(4) the relative financial circumstances of the parties;
(5) any agreement of the parties as to which state should assume jurisdiction;
(6) the nature and location of the evidence required to resolve the pending litigation, including the testimony of the child;
(7) the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and
(8) the familiarity of the court of each state with the facts and issues of the pending litigation.
When a court’s jurisdiction to decide a custody matter is disputed, the Court must closely analyze the facts presented and make specific findings supporting its decision to either assume or reject jurisdiction. New Jersey Court Rule 1:7-4; J.A. v. A.T., 404 N.J.Super. 132, 145 (App.Div.2008). It is important that you have experienced representation to represent you in navigating a cross-border or cross-state custody dispute. The lawyers at James P. Yudes, A Professional Corporation are here to assist you.