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New Jersey Family Court Addresses Jurisdiction Dispute in Post-Judgment Custody and Parenting Time Dispute

Earlier this month, a March, 2017 written opinion by family court judge the Honorable Russell J. Passomano, J.S.C. was approved for publication in the matter of BG-v-LH (FM-07-468-13).   In this published opinion the court addressed issues of296050aba1c021ff4a7e4cab0ed498d2-1-300x200 jurisdiction in a custody and parenting time dispute where one party had relocated with the children out of the state of New Jersey, but the parties had reached an agreement as part of their divorce that future custody disputes would be decided under New Jersey law and in New Jersey courts.  This case contains a detailed analysis that a family court undergoes to resolve jurisdiction issues and the application of the Uniform Child Custody Jurisdiction and Enforcement Act.

In this case, the parties married in 1993 and had three children.   By the time of the litigation the eldest child was an adult living in Israel, while the younger two lived with Plaintiff in Massachusetts.    The middle child was disabled and confined to a wheelchair and unable to speak or use his hands due to cerebral palsy.

In October, 2013 the New Jersey family court entered a final judgment as to custody and parenting time.  That custody judgment contained the defendant’s consent to allow the plaintiff to move with the children to Massachusetts no later than the beginning of the 2014/15 school year.  The judgment also contained the parties’ agreement that until the children were attending college or no longer living at home that the parties would maintain a residence no further apart than the 280 mile distance between the Boston area and the Northern New Jersey area.  The judgment set forth a parenting time schedule for Defendant and a holiday schedule, with the parties sharing use of a specialized van in order to accommodate the middle child’s special needs.  The parties consented to continued jurisdiction in New Jersey, and contained the parties’ irrevocable consent to submit to the jurisdiction of the courts of New Jersey for any future custody and parenting time disputes, as long as one parent resides in New Jersey.

The custody judgment was incorporated into a the New Jersey Dual Judgment of Divorce in 2014 after the parties entered into a Property Settlement Agreement to resolve the financial issues of their divorce.   At the time of the divorce, both parties and the children lived in New Jersey, but ultimately after the divorce Plaintiff and the children did in 2014 move to Massachusetts.  Plaintiff claimed that Defendant intended to also move to Massachusetts to live closer to the children.   Defendant, however, remained in New Jersey and exercised parenting time in New Jersey.

Ultimately, problems arose which lead to post-judgment litigation.  In 2016 Defendant went to Massachusetts to pick up the middle child and then drove to Connecticut to pick up the parties’ daughter who was at a school retreat, believing this would save time as it was on the way between Massachusetts and New Jersey.    The daughter, however, did not want to go from the retreat to New Jersey; she wanted to ride with her friends on the bus back to Massachusetts and leave for New Jersey from there.  Defendant did not want to drive back to Massachusetts from Connecticut and then drive to New Jersey from there for the wedding.   The daughter had a tantrum and it took an hour to convince the daughter to come with Defendant from Connecticut to New Jersey.   The dispute, however, put a pall on the wedding weekend, where the daughter complained about seating arrangements at the wedding and called Plaintiff several times.

Within a week of Defendant returning the children to Massachusetts, two complaints were initiated with the Massachusetts Department of Children and Family (DCF). One was filed by the middle child’s school, accusing Defendant of sexual abuse related to a cut and rash on the boy’s genitals.  The other was filed by the daughter’s pediatrician and accused Defendant of physically abusing the daughter during the wedding weekend.   Massachusetts’ DCF determined that both complaints were “unsubstantiated”.

Plaintiff filed an application to modify custody in the family court in Massachusetts, which limited Defendant to supervised parenting time but held the balance of the proceedings in abeyance pending a determination by the New Jersey family court as to jurisdiction.   Plaintiff argued that the New Jersey family court should decide that it did not have jurisdiction or that it should relinquish custody to Massachusetts where her custody application was pending.  Judge Passamano declined and found that the New Jersey court had jurisdiction and refused to relinquish it to Massachusetts.

At issue in this case is New Jersey’s 2004 Uniform Child Custody Jurisdiction and Enforcement Act (NJUCCJEA), N.J.S.A. 2A:34-53 et seq.   Massachusetts was the children’s “home state” because they lived there with a parent for at least six months preceding the filing of the application to change custody.  Pursuant to the statute, however, because New Jersey entered the initial orders concerning custody, only a New Jersey court can determine whether New Jersey has lost jurisdiction. N.J.S.A. 2A:34-66.

Judge Passamano engaged in a three stage analysis, citing Griffith v. Tressel, 394 N.J. Super. 128, 139 (App. Div. 2007): (1) the court determines whether it acquired continuing exclusive jurisdiction; (2) the court determines whether circumstances have changed so as to divest New Jersey of jurisdiction; (3) the court determines whether New Jersey is an inconvenient forum, and if so whether Massachusetts was the appropriate forum.

The court found that the first requirement was met and that the 2013 initial custody order gave New Jersey exclusive continuing jurisdiction.    The judge further found that New Jersey circumstances had not changed so as to divest New Jersey of jurisdiction pursuant to N.J.S.A. 2A;34-66.    Defendant continued to reside in New Jersey, so that circumstance had not changed. As long as there is a significant connection between New Jersey and the child or the child and one parent, or there is substantial evidence in New Jersey, then this state retains jurisdiction.   That analysis is fact sensitive and focuses on the relationship between the child and the parent remaining in New Jersey.  A finding of significant connection cannot be based only on a parent’s continued residence in New Jersey, however.  Judge Passamano found that Defendant and the children had significant connection with New Jersey. The court reasoned that the parties lived in New Jersey up to and for a period after the divorce.  Defendant remains in New Jersey.  The parties share joint legal custody and Defendant exercises parenting time in New Jersey.    As a result, the court found that New Jersey has continuing jurisdiction.

The judge also found that there is substantial evidence in New Jersey.   Examinations and expert analysis was conducted in the New Jersey divorce litigation where custody was a major issue. There would be some witnesses at trial from New Jersey.   Since that statute does not require all evidence and witnesses to be in New Jersey, the fact that some trial witnesses were in Massachusetts did not deprive New Jersey from continuing exclusive jurisdiction.

The court then addressed whether New Jersey was an inconvenient forum and whether Massachusetts was a more appropriate forum, both necessary elements under the statute, N.J.S.A. 2A:34-71(a).  Judge Passamano found that both elements were satisfied, assessing the eight factors listed  in the statute.   Domestic violence had not occurred between the parties.   The children had resided in Massachusetts for three years and returned to New Jersey during that time for parenting time.  This was not such a length of time that made New Jersey an inconvenient forum and Massachusetts a more appropriate forum.   Massachusetts is not close but within driving distance of New Jersey.   Plaintiff did not indicate that litigating the matter in New Jersey would cause her financial concern.  While consent is not dispositive of the issue, Plaintiff did enter into the 2013 agreement consenting to the application to New Jersey law and to New Jersey having jurisdiction of future custody disputes even though it was contemplated that she and the children would be moving to Massachusetts.  This weighed against a finding that New Jersey was an inconvenient forum. While witnesses could potentially be located in both New Jersey and Massachusetts, the Court noted that the  statute allows for testimony to be taken from out of state witnesses.  The judge noted the burden on the middle child having to travel to New Jersey, though pointed out that the child traveled to New Jersey for parenting time with Defendant.   This factor though, weighed more in favor of Massachusetts as an appropriate forum. Either state’s courts could decide the issues at hand expeditiously.   New Jersey, however, had a longer history with the parties given that the matrimonial proceeding was in New Jersey, whereas the Massachusetts court had no involvement with the case or the parties and the judge that ordered supervised visitation had retired.  A new Massachusetts judge would have had no involvement with the case.  The Court found that the burden on the middle child having to travel to New Jersey for the case did not outweigh the agreement the parties made to litigate custody disputes in New Jersey.  In 2013 when that agreement was made, the parties were aware of their child’s condition but did not see that preventing future disputes from being litigated in New Jersey.

The court found that a plenary hearing was not necessary to determine the issue of jurisdiction because the facts were not in material dispute as to that issue.

Jurisdictional disputes are often complex and required detailed analysis.  The law office of James P. Yudes, A Professional Corporation is here to assist you.