Interstate Custody Determination

a. “The Superior Court of the State of New Jersey has jurisdiction to make a child custody determination by initial or modification decree if:

• This State (i) is the home state of the child at the time of commencement of the proceeding or (ii) had been the child's home state within 6 months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and the parent or person acting as a parent continues to live in this state; or
• It is in the best interest of the child that a court of this state assumes jurisdiction because, (i) the child and his parents or the child and at least one contestant, have a significant connection with this state, and (ii) there is available in this state substantial evidence concerning the child's present or future care, protection, training and personal relationships; or
• The child is physically present in this state and (i) the child has been abandoned or (ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected; or
• It appears that no other state will have jurisdiction under prerequisites substantially in accordance with Paragraphs (1), (2), or (3), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that this Court assume jurisdiction.

b. Except under Paragraphs (3) and (4) of Subsection a., physical presence in this state of the child or of the child and one of the contestants, is not alone sufficient to confer jurisdiction on a Court of this state to make a child custody determination.

c. Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody.” N.J.S.A. 2A:34-31.

The 6-Month Home Period

The legislature's decision to establish a 6-month home period to qualify as the home state was not arbitrary, but was selected on public policy grounds, “in order to have a definite and certain test, which is, at the same time, based upon a reasonable assumption of fact. The assumption is that most American children are integrated into a community after having lived there for 6 months, and that this period of residence would therefore seem to provide a reasonable criterion for identifying the established home.” 72 A.L.R. 5th 249. (citations omitted.) The language defining why one state should be identified as a “home state” over another is obviously to provide jurisdiction to the state with which that child has the strongest contacts. Assumedly, a child would develop contacts within any state that he or she resided in for at least 6 months. These would be ties with the child's family, friends, school, doctors, community and culture, among others.

'Significant Connection' Test

Alternatively, application of the “significant connection” test under N.J.S.A. 2A:34-31(a)(2) can be used to evaluate which state should exercise jurisdiction. This section does not restrict the court to use a 6-month time frame, but because the minor child and at least one parent live in the state and there is evidence available concerning the child's present or future care, protection, training or personal relationships, it provides a court with jurisdiction. This section is necessary in situations where no state has jurisdiction under the 6-month rule but, for example, one party moves to a state where he or she has a support group of parents or friends or where the child may have resided for a significant portion of its life, but not for the preceding 6 months.

Preventing Disputes

The UCCJA is also designed to prevent disputes between various states. In a contested matter between New Jersey and Pennsylvania, both states with virtually identical statutes, the court explained that, “a plenary hearing should be held to determine whether New Jersey had jurisdiction to determine custody, and if so whether New Jersey should exercise its jurisdiction.” Ganz v. Rust, 299 N.J. Super. 324, 336 (App. Div. 1997). The court refused to find “that jurisdiction is automatically determined by a race to the courthouse.” Instead, the court concluded “the UCCJA requires full faith and credit to another state's custody order only where that state's court has obtained jurisdiction in substantial compliance with the UCCJA.” Id. at 337. The reasoning in the Ganz case was based upon the legislative intent of the UCCJA, which sought to:

• Avoid jurisdictional competition and conflict with courts of other states in matters of child custody which have in the past resulted in the shifting of children from state to state with harmful effects on their well being;
• Promote cooperation with the courts of other states to the end that a custody decree is rendered in that state which can best decide the case in the interest of the child;
• Assure that litigation concerning the custody of a child takes place ordinarily in the state with which the child and his or her family have the closest connection and where significant evidence concerning his care, protection, training, and personal relationships is most readily available, and that the courts of this state decline the exercise of jurisdiction when the child and his family have a closer connection with another state;
• Discourage continuing controversies over child custody in the interest of greater stability of home environment and of secure family relationships for the child;
• Deter abductions and other unilateral removal of children undertaken to obtain custody awards;
• Avoid re-litigation of custody decisions in other states in this state insofar as feasible;
• Facilitate the enforcement of custody decrees of other states; and
• Promote and expand the exchange of information and other forms of mutual assistance between courts of this state and other states concerned with the same child.

Id. at 334, citing N.J.S.A. 2A:34-29.

'Blind Obedience'?

It is crucial to note that the UCCJA does not contemplate blind obedience to home state jurisdiction, but favors the state that is best positioned to make a decision based upon the best interests of the child. See M.P.H.M. v. K.S.M., 324 N.J. Super. 51, 55 (App. Div. 1999) and E.E.D. v. D.A., 89 N.J. 595, 610 (1982).

In representing the parent contesting jurisdiction, issues of bad faith and forum shopping on the part of the other parent should be emphasized. For example, if a plaintiff improperly retains a child in violation of an Order of another state then New Jersey may decline jurisdiction. See Pozzi v. Pozzi, 210 N.J. Super. 522 (Ch. Div. 1986); Neger v. Neger, 93 N.J. 15 (1983); Stevens v. Stevens, 177 N.J. Super. 167 (App. Div. 1981). Furthermore, a court of New Jersey “shall not exercise its jurisdiction under this act if at the time of filing the petition a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this act, unless the proceeding is stayed by the court of the other state because this state is a more appropriate forum or for other reasons.” See Pozzi v. Pozzi, 210 N.J. Super. 522 (Ch. Div. 1986); Neger v. Neger, 93 N.J. 15 (1983); Stevens v. Stevens, 177 N.J. Super. 167 (App. Div. 1981). Therefore, most states, like New Jersey, will not reward a parent who appears in court with unclean hands and who appears to have moved back to a state to “snatch custody” of the children. In representing a parent seeking the exercise of jurisdiction, if the 6-month rule is not met, the practitioner must focus on substantial contacts or other statutory factors.

In a recent decision, New Jersey's Appellate Court emphasized the importance of compliance with the UCCJA, notwithstanding an agreement of the parties. Peregory v. Peregoy, 358 N.J. Super. 179 (App. Div. 2003). The court held that although “a forum-selection or consent-to-jurisdiction clause respecting custody and visitation can be effective … is not to say that it is effective for all time or that it controls if it is inconsistent with the UCCJA.” Id. at 193. The court applied the three-step analysis used in Ivaldi v. Ivaldi, 147 N.J. 190 (1996), that is:

• Evaluate if there is a valid consent to jurisdiction clause concerning custody and visitation;
• Determine if any other state has acquired subject matter jurisdiction under the UCCJA or other applicable law;
• If there is concurrent jurisdiction, determine which state is the more appropriate for exercising jurisdiction in the child's best interest.

Peregory, 354 N.J. Super. 196.

Therefore, it is imperative for the practitioner to bear in mind that the UCCJA has not been viewed as a “black letter” statute. To the contrary, courts have constantly held that it is always the best interests of the child, which will be the primary concern. Moreover, the Peregory case raises the issue of the difference between the UCCJA as codified in New Jersey and the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) which was adopted in Oklahoma (effective November 1, 1998 to replace the UCCJA). The statues are very similar. The standard set forth in the UCCJEA as adopted by Oklahoma is:

Except as otherwise provided in Section 16 of this act, a court of this state has jurisdiction to make an initial child custody determination only if:

• 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 (6) 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;
• 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 of this act, and:
• 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
• Substantial evidence is available in this state concerning the child's care, protection, training and personal relationships;
• All courts having jurisdiction under Paragraphs 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
• No court of any other state would have jurisdiction under the criteria specified in Paragraphs 1, 2 or 3 of this subsection.

Subsection A of this section is the exclusive jurisdictional basis for making a child custody determination by a court of this state. Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination. 43 Okla. Stat. Ann. Sec. 551 – 203.

What's the Difference?

The fundamental difference between these statutes is that the UCCJEA grants continuing jurisdiction to the state where an initial custody order has been entered until the child no longer has a significant connection and substantial evidence is no longer available in the state originally exercising jurisdiction, or where neither the child or parent resides in that state. There is no such presumption in the UCCJA. Similar to the UCCJA, there is a provision for emergency jurisdiction and language requiring the two potential jurisdictions to confer. Peregory, 358 N.J. Super 198.

Conclusion

It is interesting to note that in New Jersey, the State Bar Association, Family Law Section, has voted to recommend the adoption, with minor amendments, the National Conference of Commissioners on Uniform State Laws' (NCCSL) proposal to enact the UCCJEA to offer clearer custody rules for determining jurisdiction and enforcement of disputes (12 N.J.L. 864, May 5, 2003, “Update on State Bar's Legislative Activity”). The NCCSL has recommended the adoption of the UCCJEA to replace the UCCJA, which was adopted in 1968, in an attempt to make the decisions of different states more uniform. Over the course of the 30 years since its implementation, the UCCJA has been inconsistently applied due to a weak text. Interstate custody laws are constantly evolving with the purpose of creating national and international uniformity. However, until such time as all of the states adopt new, identical legislation, matrimonial practitioners must understand the policies underlying the law and be prepared to use the existing statutes and case law to advocate on behalf of their client.

“The chancellor in exercising jurisdiction upon petition does not proceed upon the theory that the petitioner, whether the father or mother, has a cause of action against the other or indeed against anyone. He acts as parens patrioe to do what is best for the interest of the child. He is to put himself in the position of a 'wise, affectionate and careful parent' and make provision for the child accordingly.” Finlay v. Finlay , 240 N.Y. 429 (1925), citing Queen v. Gyngall, 1893, 2 Q.B.D. 232, 238 (Judge Cardozo).

A challenge for the matrimonial attorney is resolving the ever-increasing issue of the movement of parents with minor children in and among various states. In a mobile society where parents have joint legal custody, circumstances can arise where each party files an application for custody in a different state. Initially, each state may exercise jurisdiction. However, only one state will be determined to be the child's “home” state under the Uniform Child Custody Jurisdiction Act (UCCJA), thereby providing the final say regarding a custody dispute.

The UCCJA is a remedial statute intended to provide protection for custodial parents, to discourage child snatching and forum shopping, and to establish stability in the enforcement of custody decrees between states. States may choose to codify the UCCJA. For example, New Jersey has codified the UCCJA in N.J.S.A. 2A:34-28 et seq. This statute seeks to avoid the legitimization of custody by a parent who has demonstrated bad faith by taking a child across state lines without the consent of the other parent, and aims to prevent shopping for a favorable custody determination. “The UCCJA was designed to foster stability in custody awards and discourage 'seize-and-run' tactics by forum-shopping parents.” Neger v. Neger , 93 N.J. 15, 25 (1983), citations omitted; see also D.B. v. R.B., 279 N.J. Super. 405, 408 (App. Div. 1995). The statute as codified by New Jersey states that:

a. “The Superior Court of the State of New Jersey has jurisdiction to make a child custody determination by initial or modification decree if:

• This State (i) is the home state of the child at the time of commencement of the proceeding or (ii) had been the child's home state within 6 months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and the parent or person acting as a parent continues to live in this state; or
• It is in the best interest of the child that a court of this state assumes jurisdiction because, (i) the child and his parents or the child and at least one contestant, have a significant connection with this state, and (ii) there is available in this state substantial evidence concerning the child's present or future care, protection, training and personal relationships; or
• The child is physically present in this state and (i) the child has been abandoned or (ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected; or
• It appears that no other state will have jurisdiction under prerequisites substantially in accordance with Paragraphs (1), (2), or (3), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that this Court assume jurisdiction.

b. Except under Paragraphs (3) and (4) of Subsection a., physical presence in this state of the child or of the child and one of the contestants, is not alone sufficient to confer jurisdiction on a Court of this state to make a child custody determination.

c. Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody.” N.J.S.A. 2A:34-31.

The 6-Month Home Period

The legislature's decision to establish a 6-month home period to qualify as the home state was not arbitrary, but was selected on public policy grounds, “in order to have a definite and certain test, which is, at the same time, based upon a reasonable assumption of fact. The assumption is that most American children are integrated into a community after having lived there for 6 months, and that this period of residence would therefore seem to provide a reasonable criterion for identifying the established home.” 72 A.L.R. 5th 249. (citations omitted.) The language defining why one state should be identified as a “home state” over another is obviously to provide jurisdiction to the state with which that child has the strongest contacts. Assumedly, a child would develop contacts within any state that he or she resided in for at least 6 months. These would be ties with the child's family, friends, school, doctors, community and culture, among others.

'Significant Connection' Test

Alternatively, application of the “significant connection” test under N.J.S.A. 2A:34-31(a)(2) can be used to evaluate which state should exercise jurisdiction. This section does not restrict the court to use a 6-month time frame, but because the minor child and at least one parent live in the state and there is evidence available concerning the child's present or future care, protection, training or personal relationships, it provides a court with jurisdiction. This section is necessary in situations where no state has jurisdiction under the 6-month rule but, for example, one party moves to a state where he or she has a support group of parents or friends or where the child may have resided for a significant portion of its life, but not for the preceding 6 months.

Preventing Disputes

The UCCJA is also designed to prevent disputes between various states. In a contested matter between New Jersey and Pennsylvania, both states with virtually identical statutes, the court explained that, “a plenary hearing should be held to determine whether New Jersey had jurisdiction to determine custody, and if so whether New Jersey should exercise its jurisdiction.” Ganz v. Rust , 299 N.J. Super. 324, 336 (App. Div. 1997). The court refused to find “that jurisdiction is automatically determined by a race to the courthouse.” Instead, the court concluded “the UCCJA requires full faith and credit to another state's custody order only where that state's court has obtained jurisdiction in substantial compliance with the UCCJA.” Id. at 337. The reasoning in the Ganz case was based upon the legislative intent of the UCCJA, which sought to:

• Avoid jurisdictional competition and conflict with courts of other states in matters of child custody which have in the past resulted in the shifting of children from state to state with harmful effects on their well being;
• Promote cooperation with the courts of other states to the end that a custody decree is rendered in that state which can best decide the case in the interest of the child;
• Assure that litigation concerning the custody of a child takes place ordinarily in the state with which the child and his or her family have the closest connection and where significant evidence concerning his care, protection, training, and personal relationships is most readily available, and that the courts of this state decline the exercise of jurisdiction when the child and his family have a closer connection with another state;
• Discourage continuing controversies over child custody in the interest of greater stability of home environment and of secure family relationships for the child;
• Deter abductions and other unilateral removal of children undertaken to obtain custody awards;
• Avoid re-litigation of custody decisions in other states in this state insofar as feasible;
• Facilitate the enforcement of custody decrees of other states; and
• Promote and expand the exchange of information and other forms of mutual assistance between courts of this state and other states concerned with the same child.

Id. at 334, citing N.J.S.A. 2A:34-29.

'Blind Obedience'?

It is crucial to note that the UCCJA does not contemplate blind obedience to home state jurisdiction, but favors the state that is best positioned to make a decision based upon the best interests of the child. See M.P.H.M. v. K.S.M. , 324 N.J. Super. 51, 55 (App. Div. 1999) and E.E.D. v. D.A. , 89 N.J. 595, 610 (1982).

In representing the parent contesting jurisdiction, issues of bad faith and forum shopping on the part of the other parent should be emphasized. For example, if a plaintiff improperly retains a child in violation of an Order of another state then New Jersey may decline jurisdiction. See Pozzi v. Pozzi , 210 N.J. Super. 522 (Ch. Div. 1986); Neger v. Neger , 93 N.J. 15 (1983); Stevens v. Stevens , 177 N.J. Super. 167 (App. Div. 1981). Furthermore, a court of New Jersey “shall not exercise its jurisdiction under this act if at the time of filing the petition a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this act, unless the proceeding is stayed by the court of the other state because this state is a more appropriate forum or for other reasons.” See Pozzi v. Pozzi , 210 N.J. Super. 522 (Ch. Div. 1986); Neger v. Neger , 93 N.J. 15 (1983); Stevens v. Stevens , 177 N.J. Super. 167 (App. Div. 1981). Therefore, most states, like New Jersey, will not reward a parent who appears in court with unclean hands and who appears to have moved back to a state to “snatch custody” of the children. In representing a parent seeking the exercise of jurisdiction, if the 6-month rule is not met, the practitioner must focus on substantial contacts or other statutory factors.

In a recent decision, New Jersey's Appellate Court emphasized the importance of compliance with the UCCJA, notwithstanding an agreement of the parties. Peregory v. Peregoy , 358 N.J. Super. 179 (App. Div. 2003). The court held that although “a forum-selection or consent-to-jurisdiction clause respecting custody and visitation can be effective … is not to say that it is effective for all time or that it controls if it is inconsistent with the UCCJA.” Id. at 193. The court applied the three-step analysis used in Ivaldi v. Ivaldi , 147 N.J. 190 (1996), that is:

• Evaluate if there is a valid consent to jurisdiction clause concerning custody and visitation;
• Determine if any other state has acquired subject matter jurisdiction under the UCCJA or other applicable law;
• If there is concurrent jurisdiction, determine which state is the more appropriate for exercising jurisdiction in the child's best interest.

Peregory, 354 N.J. Super. 196.

Therefore, it is imperative for the practitioner to bear in mind that the UCCJA has not been viewed as a “black letter” statute. To the contrary, courts have constantly held that it is always the best interests of the child, which will be the primary concern. Moreover, the Peregory case raises the issue of the difference between the UCCJA as codified in New Jersey and the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) which was adopted in Oklahoma (effective November 1, 1998 to replace the UCCJA). The statues are very similar. The standard set forth in the UCCJEA as adopted by Oklahoma is:

Except as otherwise provided in Section 16 of this act, a court of this state has jurisdiction to make an initial child custody determination only if:

• 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 (6) 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;
• 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 of this act, and:
• 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
• Substantial evidence is available in this state concerning the child's care, protection, training and personal relationships;
• All courts having jurisdiction under Paragraphs 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
• No court of any other state would have jurisdiction under the criteria specified in Paragraphs 1, 2 or 3 of this subsection.

Subsection A of this section is the exclusive jurisdictional basis for making a child custody determination by a court of this state. Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination. 43 Okla. Stat. Ann. Sec. 551 – 203.

What's the Difference?

The fundamental difference between these statutes is that the UCCJEA grants continuing jurisdiction to the state where an initial custody order has been entered until the child no longer has a significant connection and substantial evidence is no longer available in the state originally exercising jurisdiction, or where neither the child or parent resides in that state. There is no such presumption in the UCCJA. Similar to the UCCJA, there is a provision for emergency jurisdiction and language requiring the two potential jurisdictions to confer. Peregory, 358 N.J. Super 198.

Conclusion

It is interesting to note that in New Jersey, the State Bar Association, Family Law Section, has voted to recommend the adoption, with minor amendments, the National Conference of Commissioners on Uniform State Laws' (NCCSL) proposal to enact the UCCJEA to offer clearer custody rules for determining jurisdiction and enforcement of disputes (12 N.J.L. 864, May 5, 2003, “Update on State Bar's Legislative Activity”). The NCCSL has recommended the adoption of the UCCJEA to replace the UCCJA, which was adopted in 1968, in an attempt to make the decisions of different states more uniform. Over the course of the 30 years since its implementation, the UCCJA has been inconsistently applied due to a weak text. Interstate custody laws are constantly evolving with the purpose of creating national and international uniformity. However, until such time as all of the states adopt new, identical legislation, matrimonial practitioners must understand the policies underlying the law and be prepared to use the existing statutes and case law to advocate on behalf of their client.