Establishing or changing details of a child custody agreement can be incredibly stressful for one or both parents, and the stress can spill over and affect the child. The situation can be exacerbated if the two parents live in different states, and there is a question of jurisdiction: Which state is responsible for hearing the case and making child custody and visitation decisions?
Interstate custody cases arise for many reasons, such as the following:
- There is a conflict between the custody order within a protection order issued in one state and a custody order issued by another.
- A custody agreement from State A exists, but the parent from that state is abusive during visitation, and the parent in State B seeks modification of the order.
- A parent with a custody order from another state seeks a protection order from the other parent that includes a custody provision.
- One parent leaves the state with the children in violation of the custody agreement, essentially kidnapping them.
Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA) Seeks to Provide Clarity and Consistency
To increase clarity when addressing this often-volatile issue, the National Conference of Commissioners on Uniform State Laws (NCCUSL) drafted the Uniform Child-Custody Jurisdiction and Enforcement Act (the UCCJEA) in 1997 to replace its 1968 Uniform Child Custody Jurisdiction Act (UCCJA). Improvements in the UCCJEA over the UCCJA include clarifying confusing provisions and adding protections for domestic violence victims who had fled their home state. The UCCJEA has since been adopted by all 50 states except Massachusetts, as well as the District of Columbia, Guam, and the Virgin Islands.
The UCCJEA serves as a deterrent to interstate and international parental kidnapping by providing consistent legal guidelines among states and requiring that state courts enforce child custody orders and visitation agreements made by other states. It also promotes cooperation among courts handling questions of child custody in different states and reduces competition among states. A mandate for increased interstate judicial communication is another highlight of the UCCJEA and is a critical aspect of resolving complex child custody cases involving parents who reside in different states.
Guidance on the New Jersey UCCJEA
The New Jersey UCCJEA (NJ UCCJEA) became effective in 2004, and it governs how New Jersey courts will address issues of child custody when one parent lives in New Jersey and the other lives in another state. The NJ UCCJEA also applies when considering custody arrangements when one parent is in New Jersey, and the other is in a foreign country. In these cases, the foreign country is treated as if it were a US state unless that country violates fundamental principles of human rights. In any case involving an Indian (Native American) child, New Jersey courts treat the child's tribe as if it were a state.
While the UCCJEA, as drafted, seeks to provide uniform criteria when determining which state has jurisdiction in a child custody case, the exact provisions in each state's UCCJEA can vary somewhat. The Family Law Team at the Lento Law Firm can provide guidance on the implications of the NJ UCCJEA and the UCCJEA of the other state relevant to your case. In addition, they can guide you through the procedures related to custody cases that fall under NJ UCCJEA.
While child custody jurisdiction is intricate, we'll highlight the fundamentals of the UCCJEA to give you a better understanding.
Hierarchical Principles of the Uniform Child Custody Jurisdiction and Enforcement Act
While The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) addresses which court in which state is the suitable one to make child custody and visitation decisions, it does not cover any of the logistics of a case, like adoption, juvenile delinquency, contractual emancipation, and other case details such as child support. These matters are addressed by the court determined under UCCJEA to have jurisdiction.
The UCCJEA has established several hierarchical principles as methods of determining jurisdiction. They include (1) the "home state," (2) the "significant connection," (3) emergency situations, and (4) presence of the child with no other basis for taking jurisdiction. Once a court establishes it has a basis for jurisdiction under UCCJEA, it must notify the parties involved in the child custody and visitation issue and give them an opportunity to be heard. The court can then make or modify a custody determination.
The "Home State"
The first phase of deciding jurisdiction is determining the child's home state. The home state is given priority and is defined as the state where the child has resided six months before proceedings are to start. At least one of the parents must live in the state for it to be considered. For any child less than six months old, the home state is where the child has lived since birth.
For example, if a child has lived in New Jersey for the past six months or the child lived in New Jersey for at least six months before a parent has filed a complaint for custody in the Superior Court of New Jersey, New Jersey will be deemed the child's home state.
In situations where a family moved from and then returned to a state, it will be up to a judge in that state to determine whether the time elsewhere should be defined as temporary.
A Significant Connection
If there is no home state, or if the state refuses to exercise jurisdiction, then a state where the child or one of the parents has a significant connection may be able to claim jurisdiction. A significant connection requires more than the child's presence—there usually are relatives in that state, or there's another reason why it's in the child's best interest. In fact, a state's court may determine that there a significant connection exists enough to establish jurisdiction over child custody, even if the child is not physically present in the state. In cases where more than one state qualifies for jurisdiction based on significant connection, the UCCJEA's requirement for communication between courts in different states proves its value as courts work with each other to resolve the jurisdiction question.
In any case, all substantial evidence will be collected in this state, usually from sources including relatives, teachers, school counselors, healthcare providers, and therapists, to help make a determination.
For instance, if a child and her parents no longer live in New Jersey, it will obviously no longer be the home state. If the child moves with her mother to Texas, where she has lots of family, and the father moves to New Hampshire, where there is no family, then it's likely that Texas would now have jurisdiction over the case based on the significant connection principle.
In cases when a child has been abandoned or when the child and his or her guardian have been subjected to or threatened with abuse, the state where they currently reside may exercise temporary emergency jurisdiction under the third principle. After an emergency order is entered, often by including a custody provision when entering a domestic violence protection order, it will remain in effect until the child's true home state is determined. If this doesn't happen, the state that enacted the emergency order shall become the child's home state.
Once a court in one state enters an emergency order, it is mandatory for communication to occur between that court and any court in another state already hearing a custody case or issuing a custody order concerning the same parties. The two courts should communicate with the goal of resolving the emergency as quickly as possible, protecting all parties involved in the case, and determining the duration of the emergency order.
Vacuum (All Other Situations)
If none of the above principles apply to a child's situation, then the state they currently reside in must fill the vacuum and exercise jurisdiction. For example, in some cases, a family travels from state to state, staying less than six months in any one place, so the state where the child is currently residing, even if it is for less than six months, has jurisdiction. Children of members of the Armed Services or migrant workers could fall into this category, as could homeless children or children living with a series of relatives because their parents could not or would not provide care.
When One or More States Decline Jurisdiction
In some cases, the home state and the state where significant connections for the child exist may decline jurisdiction in favor of another state. For example, the parents each reside in a different state, and one of the parents will be relocating to a third state and establishing a home that will be more suitable for the child. In this case, each of the first two courts would decline based on being an "inconvenient forum"—the court of another state would be a more appropriate forum. A court may also decline jurisdiction if it finds the petitioner has engaged in unjustifiable conduct. For example, a parent flees the home state with their child to another state for no other reason than to establish jurisdiction there.
New Jersey Family Law Attorney
Jurisdiction matters in child custody can be incredibly complicated, even with the clarity that the Uniform Child-Custody Jurisdiction and Enforcement Act seeks to provide. If you are hoping to resolve child custody issues and have questions about jurisdiction in New Jersey, contact Joseph D. Lento and his Family Law Team at the Lento Law Firm New Jersey Family Law practice online or by phone at 888-535-3686 for a consultation.