Under the Uniform Child Custody Jurisdiction and Enforcement Act, New Jersey becomes the “home state” of a child after they have resided here for at least six consecutive months. The exception to this rule is an emergency regarding a child. However, as a family lawyer I often confront the issue of what county in New Jersey may one file a child custody complaint may a parent file.
First, by way of background, it is important to understand the doctrine of “forum non conveniens.” Basically, forum non conveniens allows a litigant to request a new venue for his or her case to be heard in because it is more convenient. Not only would the new venue be more convenient to the litigant, but also to witnesses testifying on behalf of the litigant. In particular, forum non conveniens might be applied in a child custody case so that the new venue takes into consideration the best interests of the children. The landmark case of Loonan v. Marino provides a great illustration.
In the case, the parties divorced in Connecticut in 1976. The mother received residential (or physical) custody of the two children. Soon after the divorce, the parties moved to New Jersey. The father moved to Somerset County while the mother moved to Monmouth County. After the move, the father filed a complaint in Somerset County seeking a change of custody. However, the mother filed her own motion to transfer venue to where she was living in Monmouth County.
The mother argued that a change in venue would make it easier for the children if they had to appear in court, in addition to other witnesses who knew the parties best. The mother stated that a lot of friends, teachers, doctors and religious figures were in Monmouth County so to make them travel to Somerset County to testify in court would be inconvenient. Furthermore, the mother argued that her ex chose to file in Somerset County just to “harass and vex her.” She contended that while her multiple sclerosis did not interfere with her ability to care for her children, it would present a problem if she had to travel to Somerset County for a trial.
The trial court began its analysis by reiterating the doctrine of forum non conveniens. It stated that the doctrine provides that “even though a court has jurisdiction over a case, it is not duty bound to accept it and for sufficient reason may decline jurisdiction and either dismiss the action or transfer it to a more convenient forum.” Although the trial court recognized that the doctrine was typically used in cases involving one or more foreign parties and not in custody cases involving both litigants who reside in New Jersey, it stated that there was no reason why the court should hesitate to extend the doctrine’s benefits to custody battles.
Once the court decided to extend the benefits of forum non conveniens to custody cases, it then had to decide whether or not to apply the doctrine in the case at hand. Since there were no statutory factors to look to when making the decision whether to apply forum non conveniens intrastate, the court looked to the Uniform Child Custody Jurisdiction Act, N.J.S.A. 2A:34-29. Pursuant to the act, a court would consider the following factors when determining whether a custody case was brought in a convenient forum:
(1)if the child was living or recently lived in a different state
(2)if the child had a closer connection to another state
(3)if significant evidence regarding the child’s present or future care, protection, training and personal relationships was more readily available in a different state
The trial court stated that if it were to replace the word “state” with “county”, it would have standards to apply in intrastate disputes. The mother clearly favored applying these factors because then the children’s best interests would be considered and the trial would be moved to Monmouth County. However, the father argued that pursuant to Rule 4:76 a custody action must be filed in the county which is the domicile of the plaintiff. He argued that the rule was mandatory and therefore the court had no authority to transfer venue.
Yet, the trial court believed that the father’s argument was flawed. The court stated that N.J. Court Rule 4:76 provided that “unless the court otherwise orders, the venue shall be laid in the county in which plaintiff was domiciled when the cause of action arose.” Therefore, the court held that it did have the authority to order otherwise and grant the mother’s request for a change of venue. Ultimately, the trial court held that the doctrine of forum non conveniens should be applied and ordered venue to be moved to Monmouth County. The court held that not only did the children live in Monmouth County, but other witnesses that would be called to testify lived there as well.
The main takeaway from Loonan is that the doctrine of forum non conveniens is applicable to intrastate custody cases. If you believe that a custody complaint has been filed in an inconvenient forum, please do not hesitate to contact my office today to discuss the possibility of changing venues.