Which States Should Hear Your Custody Case? The Appellate Division Weighs In

In today’s mobile and technologically advanced society, it is becoming more common for parents to live in different states from each other. When that happens, however, and a custody/parenting time dispute arises, in what court and what state should the dispute be addressed? While the law is designed to simplify the answer and ensure that the state best able to handle the matter is the one that actually does so, unfortunately nothing is ever really simple when it comes to jurisdiction issues in family law disputes.

Through a multi-step analysis, these types of disputes are addressed under what is known as the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”). While not something that litigants often think about when they simply want to address what is happening with the children, having a general understanding of the analysis may shed some light on why this type of issue may arise.

Step 1: What is the child’s “Home State”?

The first step of the analysis is to determine whether New Jersey is the child’s home state and, if so, whether a prior custody determination was made by another state. The home state is “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 . . . [including a] period of temporary absence[.]”

When analyzing the home state issue, all that matters is where the child physically lived – not where the child legally resides or is domiciled. The intention to remain in any given state should not come into the equation. As a result, “substantial compliance” with the home state definition is not enough – it is a mandatory six month prerequisite.

In the recently published Appellate Division decision, P.H. v. L.W., the Appellate Division reversed a trial court’s determination that New Jersey was the children’s home state because they had not lived in New Jersey for six consecutive months at the time of the matter’s commencement. In fact, they came up only five days short. Notably, the children’s absence from New Jersey for that five day period was found not temporary because mom permanently returned to South Dakota where she was from.

Step 2: What if there is no “Home State”?

Even if New Jersey is not the home state, it can still exercise jurisdiction and hear a case if: (1) no other state; or (2) A court with home state jurisdiction declines to exercise it; 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.

In P.H., the Appellate Division found no “significant connection” between New Jersey and the children because of the short time period in which the children lived in this State. As a result, the court then addressed whether South Dakota was a more convenient forum than New Jersey.

Step 3: Is New Jersey a Convenient Forum?

Under the UCCJEA, a New Jersey court may decline to exercise its jurisdiction if it determines that it is an inconvenient forum and a court of another state is more appropriate. In making that decision, the New Jersey court is called upon to take into consideration the parties’ circumstances. In considering all circumstances, the following eight factors must be taken into account:

  • whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
  • the length of time the child has resided outside this State;
  • the distance between the court in this State and the court in the state that would assume jurisdiction;
  • the relative financial circumstances of the parties;
  • any agreement of the parties as to which state should assume jurisdiction;
  • the nature and location of the evidence required to resolve the pending litigation, including the testimony of the child;
  • the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and
  • the familiarity of the court of each state with the facts and issues of the pending litigation.

Referring back to P.H., the Appellate Division determined that South Dakota was the more convenient forum based on its consideration of all factors at issue, including, but not limited to, the parties no longer residing in New Jersey; allegations of domestic violence; the length of time the children resided outside of New Jersey; and the distance from New Jersey and where the children lived.

Questions of jurisdiction in custody matters is oftentimes a complicated, very fact-specific analysis. Having a general understanding of the multi-step analysis outlined above will help get you started in addressing this issue.

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