As child custody lawyers here in New Jersey, my law firm has handled many cases that involve people who move from state to state with their children. It can become confusing as to where to address future issues between the parties when you get divorced in one state, now live in another, and your former spouse lives in yet another state. I see this issue arise the most in the context of custody and support matters related to the minor children of a former marriage. Most people are not sure where to go or where to file something if they have to deal with these types of issues and have moved to another state. This can create a sense of uneasiness and doubt has to how to proceed with your case. This article will help guide you in the right direction.
The question above is one of something called “jurisdiction”. That basically means the power of a court to adjudicate cases and issue orders. Which state has jurisdiction of my matter? For further information pertaining to same as it relates to New Jersey and custody/support, you can review N.J.S.A. 2A:4-30.71 and N.J.S.A. 2A:4-30.72. Furthermore, one can look to the Uniform Child Custody Jurisdiction and Enforcement Act, which has been adopted by all fifty (50) states and deals with the issue of the interstate child and the law on child custody jurisdiction for both the establishment and enforcement of the same. This has been adopted in New Jersey under N.J.S.A. 2A:34-53.
Typically, jurisdiction is properly laid in New Jersey if the minor child has resided in the state for more than six (6) consecutive months. The UCCJEA vests exclusive and continuing jurisdiction for child custody litigation with the court of the child's home state. The “home state” is defined as the state where the child has lived with a parent for six (6) consecutive months prior to the commencement of the action.
One should also note that jurisdiction cannot be conferred by agreement. What this means is that if you get divorced in New York and in your marital settlement agreement, which resolves the issues of the marriage, both parties stipulate to New York retaining jurisdiction over issues related to the child, this provision of the agreement would not be enforced in New Jersey. Most individuals do not know this and may just simply file in the original state believing that they have no other option.
By way of example, if you have moved from New York to New Jersey with the child, you have now resided in New Jersey for more than six (6) months, and your settlement agreement contained a provision that New York would retain jurisdiction as it relates to the child, you could still file your application in New Jersey and the Court would hear the issue in New Jersey based upon UCCJEA. Furthermore, orders entered without subject matter jurisdiction are also not enforceable.
New Jersey can also have temporary emergency jurisdiction under N.J.S.A. 2A:34-68 if the child is present in New Jersey and (i) the child has been abandoned, or (ii) the child, a sibling or parent of the child, is subjected to or threatened with abuse.
This issue can be confusing. A good question to remember is where has the child resided for the past six (6) months? In most cases, that state will have jurisdiction over the child. Typically, one could still go back to the original state to enforce a prior order, let’s say child support or something. You should also remember that even though both parties may have moved out of the state of New Jersey and reside in different states, while New Jersey may not modify any existing orders, they still have the authority to enforce the order and will usually do so. For further information on this issue you can review the Uniform Interstate Family Support Act.
The most important issue in any divorce matter is the child. When you move, it can become increasing difficult to understand where to file a future application for enforcement, support, relocation, etc. As practicing New Jersey divorce attorneys we can help you determine the appropriate state in which to file your matter. If you need knowledgeable attorneys to help guide you through this process, please do not hesitate to contact our family and divorce law firm to discuss your rights and how we can help you make sure you are filing your matter in the appropriate forum.