How Do I Know If New Jersey Is the State To File For Child Custody?

How Do I Know If New Jersey Is the State To File For Child Custody?

The child custody attorneys at our law firm understand that federal law dictates that a child must reside in the state of New Jersey for at least six (“6”) consecutive months prior to filing for custody of your child. This is when New Jersey legally becomes your child’s “home state.” Substantial contacts with the state of New Jersey are required as well. Exceptions are made when our lawyers are successful in arguing to a judge of the Superior Court of New Jersey that the six-month requirement should be waived if the child’s welfare is in grave danger (i.e., child abuse). Below you will find this experienced attorney’s analysis of a recent New Jersey case that discusses this aspect of New Jersey child custody law.

In P.H. v. L.W., the parties first met in 2012. The Mother lived in South Dakota, and the Father in New York, but they began seeing each other after meeting in Chicago and continued their relationship in South Dakota. In 2013, the Mother gave birth to twin girls in South Dakota. Not long after, the Father returned to New York City, leaving the Mother and his two daughters in South Dakota. The Mother visited the Father occasionally, but she alleges that various instances of domestic violence occurred during these visits.

In 2015, the Mother moved to New York City with their two daughters to live with the Father. She alleged that she was a victim of assault while living with him and that she filed a domestic violence incident report with the police. About a month later, on July 15 th, the Father signed a lease in Dumont, New Jersey, and the Mother and two children moved into the house with him on July 18 th. The domestic abuse continued, and at the end of 2015, the Mother secured a temporary restraining order against the Father. On January 13 th, the Mother left New Jersey with the children and moved back to South Dakota. The Father then moved back to New York.

Soon after arriving in South Dakota, the Mother obtained a temporary order of protection against the Father, receiving a final order on March 8th of 2016 which granted her custody of the two girls. On January 28th, the Father filed a motion for paternity and custody of the children. He attempted to serve the Mother by mail at her Father’s address, but she was not living there and had not notified the Father of her location in order to hide from him. She stated that she did not receive the mail from her Father until late October of 2016.

On March 17th, the court entered an order requiring the Mother and the children to receive genetic testing to determine paternity. As she alleged that she was still unaware of the action against her at this time, she did not comply and an order was subsequently entered compelling the Mother to return to New Jersey with her children. The NJ trial court held that the Mother had “removed the minor children from the State of New Jersey without consent where they had resided for a period in excess of 6 months.” The court further determined that the state had “home state jurisdiction” according to the New Jersey Statute 2A:34-54. This meant that the New Jersey court had the sole power to make legal decisions concerning the custody case. Pursuant to the Father’s representation that the children had lived in New Jersey for longer than six months, the court issued a bench warrant for the Mother’s arrest, and granted temporary sole legal custody to the Father. The court argued that custody was granted to the Father “to effectuate [the Mother’s] return to New Jersey where the issues of paternity and custody need to be addressed by this Court.”

After receiving the NJ court order, the Father sought to have the South Dakota custody decision dismissed. The South Dakota judge agreed with the New Jersey court in finding that New Jersey was the girls’ home state. Therefore, the court ordered the Mother to obey the order for genetic testing. The Mother complied, and the test confirmed that the Father was the biological parent of the twins.

Beginning in April of 2017, the Mother began contesting New Jersey’s jurisdiction in both South Dakota and New Jersey courts. She filed a motion to dismiss the New Jersey custody action arguing that the court did not have subject matter jurisdiction and alternatively, that New Jersey’s jurisdiction should be given up on the basis of forum non conveniens, that New Jersey’s jurisdiction is no longer convenient. The Mother’s efforts were unsuccessful, and the judge denied her motions. The court stated that the issue of jurisdiction had already been addressed, and that denying jurisdiction in New Jersey would leave the family with “no place to go.”

In her appeal, the Mother argues that New Jersey is not the “home” of the family, and does not possess “exclusive, controlling jurisdiction” over her case. She further argued that even if New Jersey did have jurisdiction, it should transfer to South Dakota because New Jersey is an inconvenient forum. A forum may be considered inconvenient based on multiple factors such as domestic abuse, the distance between the party and the court, and the length of time the child has resided outside of the state.

Pursuant to New Jersey Statute 2A:34-65, New Jersey courts have child custody jurisdiction if New Jersey was the child’s “home state” at the time the case was filed, “or was the home state of the child within six months before” the case was filed and the child is absent from the state, but a parent continues to live in the state. On appeal, the Appellate Division determined that New Jersey was not the home state at the time the Father filed this action. The Mother and her two children moved to New Jersey on July 18th, 2015, and they moved back to South Dakota on January 13th, 2016. This is five days short of the six months required for a state to be considered a “home state.”

Even if a state is not considered a home state, the state may still be able to exercise jurisdiction if it is found that there is a significant connection between the parties and the state. However, the Appellate Division determined that neither the Mother, the Father nor the two children had any connection with New Jersey. At this point in the case, none of the parties had resided in New Jersey for over a year and a half. The court further stated that New Jersey had clearly become an inconvenient forum. None of the parties resided there, and the majority of the evidence relating to the custody case was located in South Dakota, where the children had now been living for over two years.

Because the New Jersey court had not exercised exclusive and continuing jurisdiction, and the Mother and children had been living in South Dakota far past the six-month requirement for home state jurisdiction, the Appellate Division reversed the trial court’s denial of the motion to dismiss and allowed the Mother to commence the custody proceedings in South Dakota.

Our attorneys stand prepared to help you if you are facing a child custody issue. Your inquiry is invited.


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