Child Custody and Child Support Jurisdiction

In order for a Court to hear a matter, it must have both subject matter jurisdiction over the issue and personal jurisdiction over the persons involved. The United States Supreme Court has ruled that subject matter jurisdiction “cannot be forfeited or waived and should be considered when fairly in doubt.” Ashcroft v. Iqbal, 556 U.S. 662 (2009). This means that subject matter jurisdiction is always reviewable and cannot be waived by the parties involved. The scope of subject matter jurisdiction is “governed by the extent to which the Legislature chooses to allow litigants to seek divorce in [New Jersey].” Tatham v. Tatham, 429 N.J. Super 502 (App. Div. 2013).

In New Jersey, the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) determines whether there is jurisdiction to hear an initial child custody matter. N.J.S.A. 2A:34-53, et seq. N.J.S.A. 2A:34-65 is entitled “Initial Child Custody Jurisdiction.” N.J.S.A. 2A:34-65(a) states, in relevant part, that a New Jersey Court has jurisdiction to make an initial child custody determination only if:

(1) this State is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this State but a parent or person acting as a parent continues to live in this State;

(2) a court of another state does not have jurisdiction under paragraph (1) of this subsection, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this State is the more appropriate forum under section 19 or 20 [C.2A:34-71 or C.2A:34-72] of this act and:

(a) the child and the child’s parents, or the child and at least one parent or a person acting as a parent have a significant connection with this State other than mere physical presence; and

(b) substantial evidence is available in this State concerning the child’s care, protection, training and personal relationships;

(3) all courts having jurisdiction under paragraph (1) or (2) of this subsection have declined to exercise jurisdiction on the ground that a court of this State is the more appropriate forum to determine the custody of the child under section 19 or 20 of this act; or

(4) no state would have jurisdiction under paragraph (1), (2) or (3) of this subsection.

As N.J.S.A. 2A:34-65 indicates, one must first look at whether New Jersey is the children’s home state to determine whether New Jersey has jurisdiction to make an initial custody determination. N.J.S.A. 2A:34-54 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. A period of temporary absence of any of the mentioned persons is part of the period.”

Similarly, the Uniform Interstate Family Support Act (“UIFSA”), N.J.S.A. 2A:4-30.124 et seq., is the relevant New Jersey Statute for determining which state has jurisdiction to hear an initial child support matter. N.J.S.A. 2A:4-30.132(b) states, in relevant part, that “a tribunal of [New Jersey] may not exercise jurisdiction to establish a support order if the petition or comparable pleading is filed before a petition or comparable pleading is filed in another state… if: (1) the petition or comparable pleading in the other state or foreign country is filed before the expiration of the time allowed in this State for filing a responsive pleading challenging the exercise of jurisdiction by this State; (2) the contesting party timely challenges the exercise of jurisdiction in this State; and (3) if relevant, the other state or foreign country is the home state of the child.”

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